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2001 DIGILAW 532 (CAL)

Arati Dutta v. State of West Bengal

2001-08-23

Pranab Kumar Chattopadhyay

body2001
JUDGMENT Pranab Kumar Chattopadhyay, J.: The instant Second Appeal is directed against the Judgement and Decree dated 30th May, 1992 passed by the Assistant District Judge, 2nd Court, Krishnagar, Nadia in Title Appeal No. 76 of 1991 affirming the Judgment and Decree dated 27th February, 1991 passed in Title Suit No. 57 of 1971 by the learned Munsif, 2nd Court, Krishnagar Nadia. 2. This is a Second Appeal at the instance of the plaintiffs. Originally, the suit was filed by Kanai Chand Dutta, since deceased and on the death of original plaintiff, his successors have been brought in by amending the plaint. It has been stated in the plaint that originally the plaintiff was the exclusive owner of the suit property as mentioned in the schedule to the plaint which was not agricultural land in nature and it was further claimed in the plaint that the plaintiff was in continuous possession of the same by leasing out the land to different persons. According to the plaintiff, the suit land was the intermediary lands and in view of amicable partition amongst the co-sharers, the lands fell to his share retained by submitting 'B' option form. The plaintiff has further stated that inspite of submission of the said "B" form for retaining the suit land, the Settlement Authority started a suo motu proceeding against the plaintiff and illegally vested those lands. Accordingly, the notice under section 80 C.P.C. was served on behalf of the plaintiff upon the defendant-State and thereafter the suit was filed by the original plaintiff with the following prayers – (a) a decree for declaration of the plaintiffs title to the property; (b) a decree against the defendant that the suit land was retained by the plaintiff by submitting "B" form; (c) a decree for injunction against the defendants restraining them and their officers from disturbing the plaintiffs peaceful possession and (d) a decree against the defendants that the suit property never vested to the said defendants. 3. The defendant No. 1. State of West Bengal, resisted this suit by submitting Written Statement wherein almost all the allegations made in the plaint were denied. 4. Considering the materials and evidence on record, the learned Munsif of the trial court dismissed the suit on contest without cost against the plaintiffs. However, in his judgment the learned Munsif specifically held that the plaintiffs have been possessing the suit land. 4. Considering the materials and evidence on record, the learned Munsif of the trial court dismissed the suit on contest without cost against the plaintiffs. However, in his judgment the learned Munsif specifically held that the plaintiffs have been possessing the suit land. Against the aforesaid judgment and decree passed by the learned Munsif, an appeal was preferred before the learned Assistant District Judge, 2nd Court, Nadia. The learned lower Appellate Court also dismissed the appeal on contest as the learned Judge of the lower Appellate Court agreed with the findings of the learned Munsif almost in all the points excepting on the point as regards the possession of the suit lands. Although the learned Munsif held that the possession of the suit lands are with the plaintiffs but according to the learned Judge of the lower Appellate Court, simply on the possession as trespassers the plaintiffs cannot get any decree for declaration of title and injunction. Though, the learned lower Appellate Court did not explain how it arrived at the finding that the plaintiffs are the trespassers in respect of the suit lands. Before proceeding further with the Second Appeal, substantial question of law is required to be formulated as the same was not formulated at the time of admission of appeal. Accordingly, the following substantial question of law is formulated for the purpose of deciding this Second Appeal: - "Whether the plaintiff is entitled to retain the suit land under the provisions of the West Bengal Estate Acquisition Act on the ground that the plaintiff never parted with the possession of the same." 5. Mr. De, the learned Counsel appearing for the appellants led by Mr. Harinarayan Mukherjee, Senior Counsel, submitted that both the courts below erred in law by ignoring the relevant factors that the plaintiffs are in continuous possession of the suit land and in view of such continuous possession of the lands in question, the defendant-State cannot interfere with the right of possession of the plaintiffs without taking appropriate measures under the provisions of the West Bengal Estate Acquisition Act. The learned Counsel for the appellants further submitted that "B" form was duly submitted by the plaintiffs expressing clear intention regarding retention of the suit lands and such fact has also been admitted by the learned Counsel appearing for the State in this case. The learned Counsel for the appellants further submitted that "B" form was duly submitted by the plaintiffs expressing clear intention regarding retention of the suit lands and such fact has also been admitted by the learned Counsel appearing for the State in this case. Pursuant to the provisions of the West Bengal Estate Acquisition Act, 1953 and the Rules framed thereunder, it can be safely held that though the title vests in the State, the intermediaries have the right to retain property as mentioned in section 6 of the said Act. The right of retention of land by the intermediaries has been protected by the said West Bengal Estate Acquisition Act. The detailed procedure has also been prescribed in the said Act and the Rules framed thereunder for retaining the lands. The relevant provisions of the said West Bengal Estate Acquisition Act and the Rules framed thereunder have been properly interpreted by P.B. Mukherji, J. (as His Lordship then was) in the case of Gour Gopal Mitra & Anr. vs. State of West Bengal & Ors., reported in 67 C.W.N. page 12. The relevant portion of the said decision as reported in page 16 of the said report is quoted as hereunder: "Under section 6(1) there is a right in the intermediary to retain certain lands as specified under section 6(5). The intermediary shall exercise his choice of retention within the 30th April, 1958 in Form 'B' as prescribed under Rule 4A of the West Bengal Estate Acquisition Rules. But even if the intermediary does not exercise his choice within the prescribed period and notwithstanding the word 'shall' in the earlier part of section 6(5), he still can claim his right to retain under section 6 of the Act as is expressly proved in the later portion of sub-section (5) of section 6. I construe that part of section 6(5) of the Act to mean in this context, that the right of the intermediary to retain does not become extinct even after the prescribed period has passed by". 6. I construe that part of section 6(5) of the Act to mean in this context, that the right of the intermediary to retain does not become extinct even after the prescribed period has passed by". 6. Under the aforesaid section 6(5) of the West Bengal Estate Acquisition Act, an intermediary has a right to retain the land and it has been well-settled by this Court that an opportunity even after the prescribed time limit can be given to a landlord to make a claim for retention of land under section 6(1) (c) (d) and (j) thereof so long the said landlord had not parted with the possession of the land. In the case of Gour Gopal Mitra vs. State of West Bengal (supra), P.B. Mukherji, J. (as His Lordship then was) specifically held as under: - “In other words it will mean this that so long as the intermediary has not delivered possession to the Collector under section 10(2) of the Act he has the right to claim retention.” 7. In the present case, admittedly the plaintiffs have not delivered pos• session of the suit lands to the State of West Bengal within the meaning of the aforesaid provision of section 10(2) of the said Act. It has been specifically held by the learned Munsif while deciding the suit that plaintiffs are in possession of the suit lands. The finding of the learned Munsif in this regard is quoted hereunder from the judgment of the trial court: - “'Those documents go to corroborate the oral evidence of the plaintiff in respect of possession of the suit property on the other hand defendant specifically stated in property on 4.12.69 but no scrap of paper has been filed by the defendant in corroboration of their statement. Although there is mandatory provision in the Estate Acquisition Act under section 10 that the defendant State of West Bengal is bound to take khas possession under section 10 and in the manner provided under Rule 7 of the Estate Acquisition Act. So, I have no hesitation to hold that plaintiffs have actual physical possession over the suit property and defendant No. 1 has not taken khas possession of the suit property from the plaintiff.” 8. So, I have no hesitation to hold that plaintiffs have actual physical possession over the suit property and defendant No. 1 has not taken khas possession of the suit property from the plaintiff.” 8. The learned Judge of the lower Appellate Court also did not upset the aforesaid finding of the learned Munsif that the suit lands are with the plaintiffs but only held that simply on possession as trespassers, the plaintiffs cannot get any declaration of title. I fail to understand how the plaintiffs can be treated as trespassers when nobody has contended so. In any event, it is the concurrent findings of the courts below that the possession of the suit land are with the plaintiffs. The learned Advocate for the appellant has also cited a decision of this Court reported in A.I.R. 1985 Calcutta page 166 which is based on the earlier decision of this Court reported in 67 Calcutta Weekly Notes, page 12; 70 Calcutta Weekly Notes, page 652 and 77 Calcutta Weekly Notes, page 410. 9. Considering the materials and evidence on record and on the basis of the foregoing reasons and also relying on the principles laid down by this Court earlier, I hold that the right of retention of the suit lands by the plaintiffs cannot extinct and as such the right of retention of the suit land by the plaintiffs cannot be interfered with by the defendant-State of West Bengal without taking recourse to the provisions of section 10(2) of the West Bengal Estate Acquisition Act. Thus, I find substance in this Appeal. For the foregoing reasons, the Appeal is allowed. The judgment and decree of the courts below therefore stand set aside and the suit is decreed also without costs. The respondent-State of West Bengal is also permanently injuncted form interfering with the entire suit lands. In the facts and circumstances of the case, there will, however, be no order as to costs. Appeal allowed.