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2001 DIGILAW 67 (CAL)

Prodip Kumar Das v. State of West Bengal

2001-02-12

Subhro Kamal Mukherjee

body2001
JUDGMENT Subhro Kamal Mukherjee, J. This is a plaintiffs' second appeal against a judgment of affirmance in a suit for declaration of title, confirmation of possession and permanent injunction. 2. The Title Suit No. 252 of 1973 was instituted by the plaintiffs alleging, inter alia, that the suit land measuring 6.62 acres, as described in the schedule to the plaint, originally belonged to pro-defendant No.2 who purchased the above lands from one Suren Maity and sold the suit and other lands to Achinta Kumar Maity on May 5, 1958; the plaintiff purchased the suit land from Achinta by two registered kobalas dated March 14, 1963 and May 29, 1963; the plaintiffs have been possessing the suit property by way of cultivation; the plaintiffs have paid rents in respect of the suit land in favour of the State; when the plaintiffs went to pay rents for the year 1379 B.S. to the local Tahasildar, he refused to accept it; on enquiry the plaintiffs came to know the suit land has been vested in connection with a B.R. proceeding against defendant No.2, who did not retain the lands; neither the plaintiffs were parties to the said proceeding nor any notice was served on them; as the order of vesting has clouded their title, the plaintiffs instituted the present suit after serving a statutory notice under section 80 of the Code of Civil Procedure. 3. The State of West Bengal, defendant No.1 in the said suit, contested the same by filing a written statement alleging that as defendant No.2, who was an intermediary, did not retain the suit land and as such the same has been legally vested in State pursuant to an order passed in a B.R. proceeding and neither the plaintiffs nor their vendor, Achinta Kumar Maity, acquired any title by the transfers. 4. The learned Munsif by the judgment and decree dated July 30, 1975 dismissed the suit and the plaintiffs' appeal being Title Appeal No. 753 of 1975 was, also, dismissed by the learned Additional District Judge, Fifth Court at Alipore by a judgment and decree dated July 16, 1976. 5. Being aggrieved the plaintiffs have come up with the present second appeal. In course of hearing of appeal under Order 41, Rule 11 of the Code of Civil Procedure no substantial question of law was formulated. 5. Being aggrieved the plaintiffs have come up with the present second appeal. In course of hearing of appeal under Order 41, Rule 11 of the Code of Civil Procedure no substantial question of law was formulated. However, Shri Binod Behari Giri, learned Advocate for the appellant, in course of hearing of this appeal formulated the following question of law-In view of the admitted position that State has accepted rent from the plaintiffs' in respect of the suit properties by issuing rent receipts being exhibit 6 series, the State is estopped from claiming the land as vested inasmuch as it must be held that the State recognised the tenancy right of the plaintiffs/ appellants. 6. The learned Trial Judge in the judgment and decree held that as the rent receipts were issued without prejudiced to the right, mere payment of rent and acceptance thereof by the State would not entitle the plaintiffs for a declaration of title. The lower appellate court concurred with the said findings of the learned Trial Judge. 7. Mr. Binod Behari Giri cited the case of Panchu Molla vs. State of West Bengal, reported in 1980(2) CLJ 1, to substantiate his argument that even assuming that right of plaintiffs vendors had vested in the State, but by subsequent act, that is, receipt of rent from the plaintiffs it must be held that the State Government recognised the tenancy right of the petitioner and as such is not entitled to claim the land as vested. The State has admittedly accepted the rent from the plaintiffs and since the rent has been accepted from the plaintiffs a tenancy right has been created in favour of the plaintiffs and the plaintiffs should be treated as direct tenants under the State and on that score the suit is liable to be decreed. I draw my inspiration in support of my such findings from the decisions in the cases of Abdul Haque & Anr. vs. State of West Bengal & Ors., reported in AIR 1964 Calcutta 183, Murari Mohan Mondal vs. State of West Bengal, reported in 1987(1) CHN 409 and Sheo Narain vs. Additional Commissioner, Jhansi Division, reported in 1996 Allahabad Law Journal 195. In the later decision the learned Judge of the Allahabad High Court followed and relied upon the aforesaid decisions of this court in Abdul Haque (supra) and Panchu Molla(supra). 8. In the later decision the learned Judge of the Allahabad High Court followed and relied upon the aforesaid decisions of this court in Abdul Haque (supra) and Panchu Molla(supra). 8. Even assuming that the land stood vested in State, but the possession has not been taken in respect of the alleged surplus land from the raiyat and as the State has accepted rent from the subsequent transferees, the said transferees become tenant direct under the State and the transferees right in respect of such land cannot be interfered with except in accordance with law. 9. I accordingly set aside the judgments and decrees passed by the courts below and decree the plaintiffs' suit for declaration of title, confirmation of possession and permanent injunction. It is hereby declared that the plaintiffs are the rightful owners of the property-in-dispute and have physical possession in respect thereof. Respondents are restrained by a decree of permanent injunction from interfering with the peaceful possession of the plaintiffs in respect of the suit properties. 10. The appeal is, thus, allowed. 11. Since no one appeared on behalf of the respondents, I make no order as to costs. Appeal allowed. Appeal from Appellate Decree No. 1052 of 1978 Appeal preferred on the 3rd day of January, 1977 against the judgment and decree of Sri B.N. Sinha, learned Additional District Judge, 5th Court at Alipore in Title Appeal No. 753 of 1975 dated the 16th day of July, 1976 affirming those of Sri A. K. Bhattacharyya, learned Munsif, 3rd Court at Basirhat, 24Parganas in Title Suit No. 252 of 1973 dated the 30th date of July, 1975. 1. Pradip Kumar Das 2. Sudhangshu Kumar Das ---- both sons of Late Prasanta Kumar Das of village Nalta, P.S. Dum Dum Cantonment, Calcutta - 28. - Plaintiffs/ Appellants Versus 1. State of West Bengal, through the Collector, 24-Parganas, Alipore, Calcutta. - Defendant/Respondent 2. Smt. Induprova Ghose wife of Ganesh Chandra Ghose of 26/B, Chakraberia Road South, Bhowanipore, Calcutta - 25. 3. Satish Chandra Mondal 4. Gora Chand Mondal 5. Sudhangshu Kumar Mondal All sons of Murari Mohan Mondal, of Biraj Nagar, P. S. Gosaba, 24-Parganas. 6. Sudhir Kumar Dutta 7. Sushil Kumar Dutta 8. Samir Kumar Dutta 9. Sujit Kumar Dutta All sons of Sukumar Dutta (service of notice upon the respondent Nos.6 to 9 is dispensed with vide order dated 8.6.83) 10. Gora Chand Mondal 5. Sudhangshu Kumar Mondal All sons of Murari Mohan Mondal, of Biraj Nagar, P. S. Gosaba, 24-Parganas. 6. Sudhir Kumar Dutta 7. Sushil Kumar Dutta 8. Samir Kumar Dutta 9. Sujit Kumar Dutta All sons of Sukumar Dutta (service of notice upon the respondent Nos.6 to 9 is dispensed with vide order dated 8.6.83) 10. Bhusan Das son of Naba Kumar Das 11. Bhupendra Nath Mondal son of Botu Charan Mondal 12. Ramanath Maity 13. Bhuthnath Maity 14. Anath Bandhu Maity sons of Late Kartick Chandra Maity all residing at Biraj Nagar, P.S. Gosaba, 24-Parganas. 15. Bejoy Maity son of Sri Baikuntha Maity of Biraj Nagar, P.S. Gosaba, 24-Parganas. (service of notice dispensed with vide Court's order dated 8.6.1983). 16. Rajabit Maity son of Sri Ganesh Chandra Maity of Biraj Nagar, P.S. Gosaba, 24-Parganas. 17. Nepal Tarafdar son of Sri Mohan Tarafdar of Biraj Nagar, P.S. Gosaba, 24-Parganas. - Proforma Defendants / Respondents. Appeal valued for purposes of jurisdiction at Rupees Ten CRs. 10/-). Upon this appeal coming on for hearing before The Hon'ble Justice Subhra Kamal Mukherjee one of the Judges of this Court, on the 18th day of January, 2001 and for judgment on the 12th day of February, 2001. It is ordered and Decreed that the decrees passed by both the Courts below be and the same are hereby set aside and the plaintiffs suit for declaration of title, confirmation of possession and permanent injunction is hereby decreed. And It is further ordered and declared that the plaintiffs are the rightful owners of the property in suit and have physical possession thereof. And It is further ordered that the respondent shall remain restrained permanently from interfering with the peaceful possession of the plaintiffs in respect of the suit properties. Dated this the twelfth day of February, Two Thousand and One.