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2004 DIGILAW 484 (CAL)

KARTICK CHANDRA MONDAL v. STATE OF WEST BENGAL

2004-07-22

ARUN KUMAR MITRA

body2004
ARUN KUMAR MITRA, J. ( 1 ) THE judgment of the Court was as follows : this Second Appeal arises out of a Suit for declaration of Title, confirmation of possession and injunction. In the plaint, the plaintiff made out the case which is inter alia as follows : Plot Nos. 984/1995 and 985 appertaining R. S. Khatian No. 5656 of Mouza Punra. The rental was Rs. 5-4-0. The land belonged to the plaintiff's predecessor Panchanan Mondal. The share of the plaintiff in the above Jama is 14 annas, 8 gandas and the Jama of the proforma Defendant No. 2 is 1 anna, 12 gandas. North to the above Plot is river ichhamati. Due to gradual and imperceptible recession of river the disputed two acres as described in the (Ka) Schedule of the plaint took place gradually. According to the plaintiff this recession took place long before the introduction of the West Bengal Land Reforms act. Similarly accretion of 2. 56 acres of Plot No. 15365 appertaining to Khatian No. 4532, REFERRED TO the (Kha) Schedule of the plaint took place in which the plaintiffs have 66 cents representing 1/4th share of the Jama. And the balance land belonged to proforma Defendant Nos. 3 to 5. According to the plaintiffs, since the aforementioned accretion, the plaintiffs have been in possession of the disputed (ka) and (kha) schedule of lands. It has been further stated by the plaintiffs that their total land, including the Suit land through out West Bengal is only 25 bighas. The disputed land have wrongly been recorded in the names of the plaintiffs during the R. S. operation which has allowed their title. As the local Tehshildar refused to accept rent in respect of the suit land and the plaintiffs were informed of the proposed settlement of the said lands with others by J. L. R. O. , hence the plaintiffs filed the instant suit. ( 2 ) THE above suit has been contested by Defendant No. 1, State of west Bengal by filing a written statement inter alia denying the plaintiffs title and possession in the suit land. The defence case as has been made out in the written statement is that the disputed Char land were formed after 31. 07. 1965 due to abrupt change of the river Ichhamati and the said lands of the Mouza lying opposite to the Punra Mouza. The defence case as has been made out in the written statement is that the disputed Char land were formed after 31. 07. 1965 due to abrupt change of the river Ichhamati and the said lands of the Mouza lying opposite to the Punra Mouza. The accretion was not made in slow and gradual process. But the plaintiff's possession of the same is part and parcel of their tenancies recorded in Khatian No. 5656 and 4532. Hence the suit should be dismissed. 3. On the above pleadings the following issues were framed. : 1) Is the suit maintainable ? 2) Is the suit barred by limitation ? 3) Has the notice under Section 80 C. P. C. been served ? If so, is the notice legally valid and sufficient. 4) Do the lands in dispute come within the purview of the West bengal Land Reforms Act as amended ? If so, is the notice legally valid and sufficient. 5) Have the suit lands been formed by abrupt change of course of the river or by slow and imperceptible process ? 6) Have the plaintiffs there alleged title and possession in the suit lands? 7) Are the plaintiffs entitled to decree, as prayed for ? ( 3 ) THE learned trial Judge after hearing the learned Counsel for the parties decreed the suit on contest with costs against the Defendant No. 1, state of West Bengal and ex-parte without costs against the rest. ( 4 ) THE learned trial Judge declared the plaintiffs' title to the disputed lands, measuring 60 decimal and 29 decimal of (ka) and (kha) Schedule of lands respectively. ( 5 ) THE learned trial Judge also restrained the defendant permanently from disturbing the plaintiff. The defendant, State of West Bengal preferred appeal being Title Appeal No. 1227 of 1976. ( 6 ) THE learned Appellate Court below allowed the appeal and set aside the judgment and decree passed by the learned trial Judge. Hence this Second appeal has been preferred by the plaintiffs being appellants. ( 7 ) NOW after hearing the instant appeal let me have a look as to whether any substantial question is involved in this Second Appeal or not. Hence this Second appeal has been preferred by the plaintiffs being appellants. ( 7 ) NOW after hearing the instant appeal let me have a look as to whether any substantial question is involved in this Second Appeal or not. ( 8 ) ON perusal of the judgments and decrees passed by both the Courts below, and on perusal of the averments made in the plaint and written statement and on perusal of the evidence on record, it appears that following two questions of law can be termed here as substantial question of law for the purpose of decision of this Second Appeal: (I) "whether the judgment and decree passed by the appellate court below is perverse or not. (ii) Whether the learned appellate Court below properly scrutinised the judgment of the learned trial Judge and arrived at the finding or whether the learned appellate Court below passed the judgment and decree on surmise and conjectures. ( 9 ) BEFORE taking up the appeal for hearing it requires to be recorded that in the Court below State of West Bengal filed written statement and contested the suit but in the High Court, inspite of service of notice no one appeared on behalf of the State of West Bengal. ( 10 ) IT is also required to be recorded that in the trial Court the State of west Bengal did not adduce and oral evidence and on the contrary on behalf of the plaintiffs three witnesses were examined and at the instance of the plaintiffs, local investigation was made by a Reader Commissioner. ( 11 ) THE learned Counsel appearing for the plaintiff submitted, that the judgment and decree passed by the appellate Court below is totally perverse and on wrong appreciation of law and facts and also passed the judgment and decree on surmise and conjectures. ( 12 ) THE learned Counsel for the appellant submitted that in Cadastral survey Map the Plots were there and it was so far imposed and only khatians were prepared. During R. S. operation no fresh map was prepared. ( 13 ) THE learned Counsel for the appellant further submitted that the plaintiff wanted to give rent for the excess land but the Tehshildar refused to accept the same. During R. S. operation no fresh map was prepared. ( 13 ) THE learned Counsel for the appellant further submitted that the plaintiff wanted to give rent for the excess land but the Tehshildar refused to accept the same. ( 14 ) THE learned Counsel for the appellant submitted that no evidence were adduced on behalf of the State, that the accretion of the land was after 01. 01. 1965. The plaintiff through evidence, has proved the same but the government did not adduce any evidence for proving the same. In that view of the matter presumption must go in favour of the plaintiffs. ( 15 ) THE learned Counsel relied on a decision reported in AIR 1979 calcutta Page 102 (Tarapada Hazari and Ors. v. Revenus Officer and Ors. ). ( 16 ) RELYING on this judgment delivered by a one Single Judge of this high Court, the learned counsel for he appellant submitted that in this judgment it has been clearly observed where there was gradual accretion from the recess of the river to the estates of the landlords, the accession would be accretioned to the tenur of the Raiyats of the landlord under Section 4 of the regulation after the vesting of the estate under the Estates Acquisition Act notwithstanding the fact the river subsequently silted up by the natural causes such as change of course at some point in the upstream. ( 17 ) THE learned Counsel mainly relied on the observations made in paragraphs-9,10 and 13 of this judgment which are quoted hereinbelow. "9. Section 12 quoted above was substituted by the new section by West Bengal Land Reforms (Amendment) Act, 1965 (XVII of 1965) which received the assent of the President having been published in calcutta Gazette Extraordinary dated July 31,1965. Both Section 12 and Section 59 were brought into force with effect from November 1, 1965. Thus the original Section 12, not having been brought into force prior to its substitution by the new section, was dead before it could be given effect to and the provisions of the Bengal Regulation XI of 1825 governed the rights of parties till its repeal on November 1,1965. The rights accrued under the said Regulations could not be taken away as the provisions of the new Section 12 were not made retrospective by express provision or necessary implication. ""10. The rights accrued under the said Regulations could not be taken away as the provisions of the new Section 12 were not made retrospective by express provision or necessary implication. ""10. Under the Regulation, the land accruing to the tenure of the erstwhile superior landlords of the petitioners in this case by gradual accession from the recess of the river became an increment to such tenure. As the West Bengal Estates Acquisition Act, 1953, came into operation the interest of the landlords of the petitioners vested in the state with the result that they being raiyats became the raiyats under the State which was so recorded in the finally published record of rights". "13. Section 4 declares the right of the superior land holder to the increment of land to whose tenure of estate the land is annexed from the recess of the river, and when such accession is gradual and by natural causes and not by human or artifical agency, the provisions of Section 4 of the Regulation become applicable. The increment annexed to the tenure or estate becomes a part of the tenure or estate in the same right subject to conditions therein provided as to assessment of revenue for the accretion. The above rule is not to be considered applicable to cases in which a river by a sudden change of its course intersects an estate without any gradual encroachment or violence of the stream separates considerable piece of land from one estate and joins it to another. But no exception has been made when a river itself silts up by natural causes, obviously by change of course at some point in the upstream. All that Section 4 of the Regulation requires is that there should be gradual accession from the recess of a river or of the sea when such accession is to be considered as increment of the tenure or estate to which it is annexed. After vesting of the superior interest such right devolved on the raiyat subject to ceiling but by the amendment of Section 12 of L. R. Act the right accruing after November 1, 1965 was again taken away in favour of the government. The conception of'nadibharati' by natural causes in case of gradual accession introduced by the Revenue Officer appears to have no warrant in law and thus cannot be sustained". The conception of'nadibharati' by natural causes in case of gradual accession introduced by the Revenue Officer appears to have no warrant in law and thus cannot be sustained". ( 18 ) THE learned Counsel for the appellant then REFERRED TO another decision reported in AIR2001 SC Page 1273 (Kulwant Kaurv. Gurdialsingh mann ). ( 19 ) THE learned Counsel REFERRED TO the observations made by the hon'ble Apex Court in Paragraph 32 of this judgment which is quoted hereinbelow:"32 Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High court is concerned. Needless to record that the Code of Civil Procedure amendment Act, 1976 introduced such an embargo for such definite objectives and since were are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis assumptions and conjectures and resultantly there is an element of perversity involved therein, the high Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the Concept of Justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: "103. In any second appeal, the High Court may, if the evidence on the record is sufficient,determine any issue necessary for the disposal of the appeal (a) which has not been determined by the lower Appellate Court or by both the Court of first instance and the lower Appellate Court,or ' (b) which has been wrongly determined by such Court or (c) Courts by reason of a decision on such question of law as is REFERRED TO in the Section 100". The requirement stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, but there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with". ( 20 ) THE learned Counsel relying on this judgment submitted that in a second Appeal in the matter of finding of fact, even if erroneous, the Court should not interfere in the matter but when the judgment of the Court below is perverse, the High Court can interfere and give its categorical finding regarding the perversity of the judgment under consideration. ( 21 ) THE learned Counsel for the appellant submitted that from the admitted position of law and admitted position of evidence, as it appear from the trial Court's judgment it is amply clear that the finding of the lower appellate Court is contrary of the evidence on record which can be very well termed as perverse. ( 22 ) HEARD the learned Counsel for the appellant, it appeared from the trial Court's judgment that the plaintiffs presented three witnesses, (1) Kartick chandra Mondal, (2) Radha Raman Biswas, (3) Surendra Nath Roy. ( 23 ) FROM the trial Court's judgment it appears, the learned trial Judge thoroughly considered the provisions of Section 12 of the West Bengal Land reforms Act (as amended) and the learned trial Judge also considered the period of accretion of the land. The learned trial Judge observed that P. W. 1 stated that their possession of the disputed plots was there and other co-sharers also used to possess other plots. ( 24 ) THE learned trial Judge considering the evidence observed that the p. W. 1 further stated that more than 20-21 years ago the gradual accretion took place and his father solely encroached upon the accused land and the p. W. 1 also said in his evidence that cultivation is being done for about 20-21 years. ( 24 ) THE learned trial Judge considering the evidence observed that the p. W. 1 further stated that more than 20-21 years ago the gradual accretion took place and his father solely encroached upon the accused land and the p. W. 1 also said in his evidence that cultivation is being done for about 20-21 years. ( 25 ) THE learned trial Judge considered the R. S. Record and considering the evidence the learned trial Judge came to the finding that the case does not come under the purview of Section 12 of the W. B. L. R. Act (as amended in the year 1965 ). ( 26 ) THE learned trial Judge also REFERRED TO several judgments of the high Court and the Hon'ble Apex Court and on consideration of the entire aspect came to the finding that this accessed land should be under the ownership of the plaintiffs and the title of the plaintiffs should be declared in respect of this land. ( 27 ) THE learned appellate Court below in one place observed "there is no evidence in support of defendant's contention that there was sudden change in the course of river Ichhamati. It is not known where from the appellate court below found this fact". ( 28 ) THE learned appellate Court below in another case has observed instantly "i may mention that it was improper to delegate this duty of Court as to whether the land was formed by gradual and imperceptible means or abrupt means. The learned Commissioner directed to hold local investigation, for learned Commissioner to make a finding about it ignoring that aspect. From evidence on record there would be no doubt that the land was formed by gradual and imperceptible means". ( 29 ) THE learned appellate Court below in another case found "the question then arises is, if the accretion was before or after 01. 11. 1965. In this regard only oral evidence has been adduced to prove plaintiffs' case. ( 30 ) IN my view the appellate Court below came to this finding on wrong placement of law inasmuch as the fact of accretion is such a fact which can be tested only through oral evidence and not by documentary evidence (excep certain records which can be corroborative ). ( 30 ) IN my view the appellate Court below came to this finding on wrong placement of law inasmuch as the fact of accretion is such a fact which can be tested only through oral evidence and not by documentary evidence (excep certain records which can be corroborative ). ( 31 ) WHEN the plaintiffs presented three witnesses and all the three witnesses corroborated each other and presented case in the same tune the learned appellate Court below cannot disbelieve these witnesses unless contrary evidence on record. It is admitted position that on behalf of the state of West Bengal no witness was presented. In that view of the matter when the plaintiffs' witnesses not confronted or controverted by another cogent evidence, the appellate Court below cannot disbelieve the plaintiffs' evidence and cannot come to a finding contrary to the evidence adduced by the plaintiffs. ( 32 ) IN another case, finally, the learned appellate Court below observed or found the judgment of the learned trial Judge as illegal on two Counts. According to the appellate Court below "it was wrong for two reasons; first, the report, case map and feed book together constituted single document and so should not have been marked separately. Secondly, after the report was submitted on the 2nd of may, 1975 when it was accepted by Order No. 30, dated 02. 05. 1975, the learned munsif made it part of the record and did not require to be exhibited. ( 33 ) BOTH these two observations of the appellate Court below don't find in lead to stand and these are totally perverse. In fact, the entire judgment of the appellate Court below has been scrutinised by this Court and in my opinion the learned appellate Court below unnecessarily discarded the evidence adduced on behalf of the plaintiffs, more so when no witness was presented on behalf of the state of West Bengal. ( 34 ) IN my view the matter of accretion of the land don't come under the mischief of the amended provision of Section 12 of the West Bengal Land reforms Act. The amended Section 12 came into effect in 1965 and it was not made retrospective by the statute. ( 34 ) IN my view the matter of accretion of the land don't come under the mischief of the amended provision of Section 12 of the West Bengal Land reforms Act. The amended Section 12 came into effect in 1965 and it was not made retrospective by the statute. In that view of the matter there is no way out but to accept if the entire evidence is scrutinised properly that the accretion took place long before 1965 and the plaintiffs should get advantage of the pre-amended act and the plaintiffs' title in and over the said land as well as their possession should be confirmed. ( 35 ) IN view of the discussion made above the judgment and decree passed by the appellate Court below is set aside and consequently the judgment and decree passed by the learned trial Judge is affirmed. ( 36 ) LET a decree be drawn up accordingly. ( 37 ) THE costs be borne out by the respective parties. ( 38 ) LET the Lower Court Records go down to the Courts below forthwith. Urgent xeroxed certified copy, if applied for, be handed over to the parties expeditiously.