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2003 DIGILAW 375 (CAL)

STATE OF WEST BENGAL v. BIRENDRA NATH SARKAR

2003-07-30

GORACHAND DE

body2003
G. C. DE, J. ( 1 ) 1. This second appeal is directed against the judgement and decree dated 12. 8. 77 passed by the learned Additional District Judge, Balurghat, West dinajpur in Title Appeal No. 63/1976 affirming the judgement and decree dated 9. 4. 1976 passed by the learned Munsif, Balurghat in Title Suit No. 92/1973. ( 2 ) THE plaintiff Birendra Nath Sarkar filed a Title Suit being T. S. No. 92/73 praying for declaration of his title in respect of the lands described in 'a' Schedule as well as 'b' Schedule of the plaint, for permanent injunction and other reliefs. The plaintiffs case in brief is that the owner of the suit plots was one Kader bux Mondal who settled the suit plots along with other lands to his sons Abdul hadi and Abdul Hakim and in the RS records-of-right their names were duly recorded. Thereafter, on the basis of two separate sale deeds executed and registered on 4. 3. 58, the recorded owners sold the suit property to the present plaintiff and also to Arati Rani Sarkar, and subsequently Arati Rani Sarkar sold her purchased property to the plaintiff on the basis of another sale deed dated 22. 1. 62. The plaintiff started possessing the purchased property in khas, but suddenly the respondent, the State of West Bengal tried to dispossess him from the said lands alleging that those were vested lands. Hence, the plaintiff prayed for declaration of his title and also for permanent injunction restraining the State of West Bengal from disturbing his peaceful possession in the suit lands. ( 3 ) THE State Government contested the suit by filing a written statement alleging inter alia that the lands were wrongly recorded in the names of Abdul hadi and Abdul Hakim in the RS record-of-rights and that their names were struck off on the basis of a proceeding under section 44 (2a) of the West Bengal estates Acquisition Act and thereafter the name of the original intermediary kader Bux Mondal was recorded and on its basis, it was found that the suit lands cannot be held by Kader Bux Mondal being held in excess and accordingly, an order was passed for vesting. So, the State Government prayed for dismissal of the suit. So, the State Government prayed for dismissal of the suit. ( 4 ) THE learned Munsif after hearing the parties and on perusal of the evidence on record came to a finding that the plaintiff was able to prove his right, title and possession in respect of the suit lands and that the suit lands did not vest in the State Government and accordingly, the suit was decreed and the State government was permanently restrained from interfering with the peaceful possession of the plaintiff. ( 5 ) THE State Government being dissatisfied with the order preferred the first appeal before the learned District Judge, Balurghat and it was registered as Title Appeal No. 63/76 on its transfer to the Court of the learned Additional district Judge. The First Appellate Court after hearing both sides concluded that Abdul Hadi and Abdul Hakim were tenants in respect of the suit lands and they rightly sold the suit property. So, the Appellate Court dismissed the appeal and confirmed the decree passed by the Trial Court. ( 6 ) THE State Government has accordingly preferred this second appeal. In course of admission of this appeal, substantial questions of law as required under the provision of the Code of Civil Procedure and also in view of the judgment of the Apex Court were not framed, but at the time of hearing of this appeal, following substantial questions of law were framed: (1) Did the Courts below proceed on the wrong basis that the original revisional settlement record stood in the names of the vendors of the plaintiff and dakhilas having been issued in their favour, the vendors of the plaintiff acquired valid title in the suit land? (2) Did the Courts below commit error of law in not finding that the present plaintiff being post vesting transferee cannot get any relief whatsoever? (3) Did the Courts below commit error of law in assessing the evidence and the title of the plaintiff ? decision ( 7 ) IN course of hearing, the learned Counsel appearing on behalf of the State contended that the plaintiff adduced oral evidence as PW. 1 alleging that Kader bux Mondal was the original owner of the lands and that he gave 'korfa' tenancy in respect of the suit lands in favour of his two sons, viz. Abdul Hadi and Abdul hakim. 1 alleging that Kader bux Mondal was the original owner of the lands and that he gave 'korfa' tenancy in respect of the suit lands in favour of his two sons, viz. Abdul Hadi and Abdul hakim. It is contended that since Kader Bux was a tenant, he could not allot the suit lands in favour of his sons or could not create any tenancy in respect of those lands. It is further contended that in the proceeding under section 44 (2a), the names of two sons were expunged and the name of Kader Bux Mondal was introduced in the RS record-of-rights and as the suit lands were found to be held by him in excess of the ceiling limit, it was directed to be vested in the state. Accordingly, the plaintiff did not derive any right, title and interest on the basis of the sale deeds executed in his favour and also in favour of his vendor Arati Rani Sarkar. The learned Counsel also contended that though rent receipts have been produced showing that those two sons were paying rent to Kader Bux Mondal and also to the State Government, but that cannot create any title specially in view of the decision in the case of Paul Rozario vs. State of West Bengal, reported in 2000 (2) CHN 78 . So, the learned Counsel contended that the concurrent findings of both the Courts below should be set aside and this appeal should be allowed and the suit of the plaintiff be dismissed. ( 8 ) THE learned Counsel appearing for the respondent, however, scanning the evidence adduced by the parties and also the concurrent findings of both the Courts below contended that the finding in the proceeding under section 44 (2a) of the Act was erroneous, that the names of Abdul Hadi and Abdul Hakim having been recorded in the RS record-of-rights the purchasers from them, before purchase, were satisfied about their title and possession and thus they acquired good title on the basis of the transfers made on 4. 3. 58. 3. 58. It is also pointed out that those two recorded tenants paid rent to Kader Bux Mondal long before the date of vesting and few rent receipts have been filed showing that the earliest rent was paid in the year 1356 B. S. It also appears that even after the date of vesting they went on paying rent to the State Government on the basis of rent receipts and also in terms of recording of their names in the RS record-of-rights as 'raiyot stithiban', ( 9 ) THE learned Counsel for the respondent also contended that the decision in the case of Paul Rozario (supra) is not applicable in the present case inasmuch as the points raised in this suit were not canvassed in that case. It is also contended that the views taken by the Apex Court in the case of Panchu Molla vs. State of West Bengal and Ors. , reported in 1980 (2) CLJ 1, squarely apply to this case inasmuch as no notice was issued to the persons interested in the proceeding- under section 44 (2a) of the Act. The learned Counsel also placed reliance on the Full Bench decision of this Court in the case of Atul Chandra mahato and Ors. vs. State of West Bengal and Ors. , reported in 2000 (1) CHN 626, in support of his contention that the law laid down in the case of State of West bengal vs. Pijush Kanti Roy, reported in 79 CWN 556, can no longer be considered to be a good law in respect of the questions involved in this case and that the present plaintiff was entitled to get a notice being the person interested within the meaning of section 44 (2a) of the Act and that the notice having not been issued to the plaintiff, the entire proceeding cannot bind the plaintiff at all. ( 10 ) AFTER hearing the learned Counsel of both sides and on perusal of the materials on record, it appears that the State Government initially in the year 1957 started a proceeding under section 6 (1) of the Estates Acquisition Act against Kader Bux Mondal and by an order dated 10. 11. 64, he was allowed to retain different lands within the ceiling limit after making good the shortfall. But subsequently on 20. 3. 11. 64, he was allowed to retain different lands within the ceiling limit after making good the shortfall. But subsequently on 20. 3. 70, a proceeding under section 44 (2a) was started and without any satisfactory material, it was concluded that the names of Abdul hadi and Abdul Hakim were wrongly recorded in the RS record-of-rights. Even it was not considered that Kader Bux Mondal used to issue rent receipt in favour of those two persons. On the basis of such erroneous finding under section 44 (2a) an order was passed on 1. 4. 70 with the conclusion that the suit lands including other lands were held by Kader Bux Mondal in excess, and those were directed to be vested. It appears that following law as well as the decision reported in the case of Panchu Molla (supra) and the decision in the case of Atul Chandra Mahato (supra), no notice was served on the present plaintiff who purchased the suit lands on 4. 3. 58 from Abdul Hadi by Ext. 5 (a) and from Arati Rani Sarkar on 22. 1. 62 by Ext. 5. It is also on record that Arati Rani Sarkar purchased a portion of the suit lands from abdul Hadi on 4. 3. 58 by Ext. 6. ( 11 ) IT is concurrently found by the Courts below that on the date of initiation of the proceeding under section 44 (2a) of the Act on 20. 3. 70, the present plaintiff was in possession of the suit lands. There is nothing on record to show or indicate that steps were taken for service of notice upon the recorded tenants Abdul hadi and Abdul Hakim. So, considering all these facts specifically the fact that no notice under section 44 (2a) was served on the person interested in that proceeding, the finding under section 44 (2a) of the Act cannot be binding on the plaintiff. In this connection, it is also to be mentioned that in the case of paul Rozario (supra), it is indicated by a Single Bench of this Court following the decision reported in the case of Sawarin vs. Inder Kaur and Ors. In this connection, it is also to be mentioned that in the case of paul Rozario (supra), it is indicated by a Single Bench of this Court following the decision reported in the case of Sawarin vs. Inder Kaur and Ors. , reported in 1996 (6) SCC 233 and S. J. Patel vs. V. J. Patel, reported in 1996 (6) SCC 433 , that the mutation of a property in the revenue record does not extinguish title nor has any presumptive value on title. It is also observed in the said judgment that the law settled in Panchu Molla's case (supra) cannot be a good law in view of the said two decisions. ( 12 ) BUT it is to be mentioned that in Panchu Molla's case, it was held that since the State Government mutated the name of a person as a tenant and accepted rent from such tenant, the State Government cannot consider the said lands as vested lands and thereafter can settle the lands to some other person. The principle enunciated in the case of Sawarin (supra) on in the case of S. J. Patel (supra), practically has not overruled the said findings in the panchu Molla's case. The ratio of these two decisions virtually confirm the established principle of law that the mutation of a property in the revenue record cannot create any title nor can it extinguish any title. So with due respect i fail to agree that these two later decisions of the Apex Court have virtually overruled the decision in the case of Panchu Molla. To my mind, the principle enunciated in Panchu Molla's case is still a good law and has its binding force. In the present case the State Government not only mutated the names of Abdul hadi and Abdul Hakim and finally published RS record-of-rights but also went on collecting rent from them. It is true that Rs record-of-rights brings a presumption of possession only, but the fact remains that those two tenants who started paying rent to the upper landlord at least from before 1356 B. S. cannot be construed to be persons without any authority to hold the suit lands or to get their names recorded in the RS record-of-rights. It is true that Rs record-of-rights brings a presumption of possession only, but the fact remains that those two tenants who started paying rent to the upper landlord at least from before 1356 B. S. cannot be construed to be persons without any authority to hold the suit lands or to get their names recorded in the RS record-of-rights. Both the Courts below on this score took a correct decision that they acquired good right, title and possession in respect of the suit lands and their names were rightly recorded as raiyats in the RS record-of-rights and hence, transfer made by them were good transfer of the. Or in other words, it is rightly held by both the Courts below that the plaintiff acquired good right and title in respect of the suit lands and that he is entitled to get a decree for declaration of his title in the suit lands. On this score, the learned Counsel for the respondent rightly placed reliance on an unreported decision of this Court dated 28. 4. 2001 passed in s. A. 502/1986 by the Hon'ble Justice Subhro Kamal Mukherjee in support of his contention that the State Government cannot consider the suit lands as vested lands. ( 13 ) FINALLY, it is to be pointed out in that in the Memo of Appeal grounds taken are all related to factual aspects which were finally determined by two courts below. It is rightly pointed out that the State Government did not raise any substantial question of law for determination by this Court. So, placing reliance on a judgment of the Apex Court in the case of Veerayee Ammal vs. Seemi Ammal, reported in 2002 (1) SCC 134 , it is concluded that concurrent findings of facts by successive two Courts cannot be disturbed in the second appeal without formulation of substantial question of law, or it is established that findings were opposed to law or perverse. In the present appeal, I do not find any legal ground which can justify interference with the concurrent findings of fact by the Courts below. The substantial questions of law were formulated in this appeal virtually for the purpose of deciding the disputes raised by the parties since 1973 and it is already indicated that these questions are basically related to facts already decided by the Trial Court and finally by the First appellate Court. The substantial questions of law were formulated in this appeal virtually for the purpose of deciding the disputes raised by the parties since 1973 and it is already indicated that these questions are basically related to facts already decided by the Trial Court and finally by the First appellate Court. ( 14 ) SO, after a careful consideration of the discussions made hereinabove and on scrutiny of the materials on record, I do not find any reason to interfere with such concurrent findings of the Courts below. Substantial questions of law are accordingly decided in the manner discussed hereinabove. The appeal is accordingly dismissed. Findings of both the Courts below are hereby affirmed. ( 15 ) THERE will be no order as to cost. ( 16 ) LET the Lower Court records be sent down expeditiously. ( 17 ) URGENT xeroxed certified copy of this order be given to the parties, if applied for. Appeal dismised.