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2006 DIGILAW 35 (CAL)

SACHINANDAN BHUNIA v. STATE OF WEST BENGAL

2006-01-20

ASOK KUMAR GANGULY, SOUMITRA PAL

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ASOK KUMAR GANGULY, J. ( 1 ) THIS writ petition has been filed challenging the judgment and order dated 4th December, 2003 passed by the West Bengal land Reforms and Tenancy Tribunal (hereinafter referred to as the "said tribunal") dismissing thereby the Original Application No. 3923 of 2003 filed by the writ petitioner. This case has a chequered career. ( 2 ) PRIOR to the aforesaid order of the Tribunal, another order was passed by the Tribunal on 4th July, 2003. By the said order the learned Tribunal allowed the Original Application No. 2302 of 2003 filed by the petitioner. In the said order the learned Tribunal opined that the order of the appellate authority dated 30th June, 2003 has not adequately dealt with the certificate of marriage produced by the petitioner, as such, the order of the appellate authority was set aside and the matter was remanded to the appellate authority to deal with the points afresh and particularly the points arising out of the certificate of marriage which was produced before the appellate authority. ( 3 ) PURSUANT to the said direction of the Tribunal, the matter was taken up by the appellate authority and an order afresh was passed on 1st October, 2003. In the said order the appellate authority looked into the marriage certificate furnished by the petitioner and other documents as also the relevant facts of the case. Looking into those documents the appellate authority found that the claim of the writ petitioner was that the marriage between Sachidananda bhuiya, the petitioner and Smt. Ila Bhuiya had taken place on 27th February, 1970. The appellate authority also noted that said claim was made on the basis of the certificate of marriage issued by the Marriage Officer on 24th July, 2002. ( 4 ) IT appears that on 24th July, 2002 a certificate of marriage was issued by the Marriage Officer on the basis of a declaration by the parties to the marriage that such marriage had been performed between them on 27th February, 1970 and they are living together as husband and wife. On this statement such marriage was registered under section 16 of the Act 43 of 1954. It also appears that alongwith the said marriage certificate, the names of the children out of the said marriage were also noted. Sujata Biswas, daughter of the petitioner was born on 4. 4. On this statement such marriage was registered under section 16 of the Act 43 of 1954. It also appears that alongwith the said marriage certificate, the names of the children out of the said marriage were also noted. Sujata Biswas, daughter of the petitioner was born on 4. 4. 1975 and one Sanatan Bhuiya, son of the petitioner born on 1. 3. 1979. ( 5 ) IT is quite reasonable for the appellate authority not to accept the said certificate as prima facie evidence of marriage having taken place in 1970. The so-called certificate of marriage, was given after about 32 years of the marriage and instantaneously on the basis of the claim of marriage as deposed by the witnesses who were brought before the Marriage Officer by the petitioner. The so-called certificate was obtained after notice was issued under section 14t (3)of the West Bengal Land Reforms Act to the effect that the petitioner married in 1974 and on 15. 2. 1971 his family was consisting of one unit. The appellate authority, therefore, looked into other documents which were on record. One of them is a letter dated 20th September, 2003 written by the Headmaster of Jhentla s. E. High School and vide the letter dated 20th September, 2003 the Headmaster informed the appellate authority that Ila Chowdhury, daughter of Lakshmi kanta Chowdhury, the wife of the petitioner, was admitted in the said school in class V on 30th January. 1965. According to the school record the date of birth of Ila is 10. 1. 1955. Ila appeared in the Madhyamik examination under the West Bengal Board of Secondary Education in 1972 and passed the said examination. From the certificate of the said examination it was revealed that ila appeared from the said school and the dale of birth in the certificate of madhyamik examination tallied with the date of birth recorded in the school register and it appeared that Ila passed the school final examination held in may, 1972 in 3rd Division. It further appeared that in 1972 the name of the petitioner's wife was recorded as Ila Chowdhury in the certificate of examination. It further appeared that in 1972 the name of the petitioner's wife was recorded as Ila Chowdhury in the certificate of examination. On these admitted facts which are not ad litem, the appellate authority came to the conclusion that at the time of passing the examination held in the month of May, 1972 the marriage of Ila did not take place as her name was recorded as Ila Chowdhury and not Ila Bhuiya. ( 6 ) IT is not in evidence that after her marriage Ila Chowdhury continued her studies. It is also not in evidence that Ila retained her surname as Chowdhury even after her marriage with the petitioner, which is alleged to have taken place in 1970. In the absence of such evidence it is difficult for this Court to accept that the marriage of Ila with the petitioner took place in 1970 and even thereafter Ila did not changed her surname. Therefore, this Court is unable to hold that the conclusions, reached by the appellate authority, are either perverse or unreasonable. ( 7 ) THIS Court is unable to hold that the aforesaid conclusion on facts reached by the appellate authority is not based on evidence nor this Court can come to any conclusion that the said finding is a perverse one. ( 8 ) APART from that the appellate authority found that from the certificate of passing the said examination, it appears that the age of Ila was 17 years 4 months in May, 1972. So going by those recorded, it appears that on the alleged date of marriage on 27th February, 1970 the age of Ila was only 15 years 1 month. It is obvious that on the date of so-called marriage Ila was not an adult. On these facts the appellate authority came to the finding that there cannot be any valid marriage on 27th February, 1970 between Ila and the petitioner. ( 9 ) ON those facts the appellate authority found that the marriage certificate produced is not at all acceptable and the marriage did not take place before the material date of vesting i. e. 15th February, 1971. ( 9 ) ON those facts the appellate authority found that the marriage certificate produced is not at all acceptable and the marriage did not take place before the material date of vesting i. e. 15th February, 1971. ( 10 ) ON those facts the appellate authority came to the finding that on 15th february, 1971 the petitioner was the sole surviving member of the family and he is entitled to retain ceiling prescribed for a single member family and as such the appellate authority upheld the determination of ceiling by the Revenue officer in Case No. 231 (4)NTR/02. ( 11 ) THE aforesaid finding of the appellate authority was challenged before the said Tribunal and the said challenge failed and the finding of the appellate authority was upheld by the Tribunal by a detailed judgment. The learned tribunal, apart from discussing various legal questions, also considered the evidence which is on record and found from the record that two cousin of the petitioner, namely Krishnadas Bhuiya and Debokinandan Bhuiya were examined by the appropriate authority in the proceeding under section 14t (3 ). Both the cousin, in their evidence, said that the petitioner married in the year 1974 and both the cousin claimed that they attended the marriage. The learned tribunal found that there is no reason to disbelieve the evidence given by the cousin of the petitioner. Before this Court also the evidence given by the cousin was not challenged by the petitioner. In fact, no argument was advanced before us for doubting the evidence of the said two cousin. On the other hand, the learned Counsel for the petitioner had showed before us that the date of birth of the petitioner's daughter is 4. 4. 1975. The said date of birth of the daughter is totally consistent with the evidence of cousin that the marriage had taken place in 1974. The date of birth of the boy child of the petitioner is 1. 3. 1979. The same is also consistent with the marriage having taken place in 1974. The learned counsel for the petitioner wanted to rely on the evidence of the barber and the priest. The statement of Bomkesh Chakraborty, the priest was referred to on the basis of'an affidavit affirmed before a Notary Public. The said affidavit was affirmed on 26. 3. 1979. The same is also consistent with the marriage having taken place in 1974. The learned counsel for the petitioner wanted to rely on the evidence of the barber and the priest. The statement of Bomkesh Chakraborty, the priest was referred to on the basis of'an affidavit affirmed before a Notary Public. The said affidavit was affirmed on 26. 3. 2003 which is much after the dispute arose and the said bomkesh Chakraborty did not depose before the Revenue Officer as was done by the cousin of the petitioner. The evidence of one Gunodhar Barik, the barber was a mere statement on a piece of paper and the said statement is dated 8th november, 2002. The said barber did not depose before the Revenue Officer. Alongwith the records, a statement dated 6th November, 2002 also appeared. The same purports to be a statement in the form of an application by one Tinkori ponda. But the said statement of Ponda shows that his signature was obtained on a blank paper with the representation that the same will be used on a petition for improvement of the village road and electrification of the area. But his apprehension is that the same may be used in his name to the effect that he performed the job of priest in the marriage of the petitioner. But Tinkori denied that he ever performed the job of a priest in the marriage of the petitioner. So all these three documents taken together do not inspire any confidensce about the evidential value of those documents. This Court is of the opinion that no reliance can be placed on such documents as against the testimony of the cousin of the petitioner. ( 12 ) THE learned counsel for the petitioner relied on certain decisions which arc discussed below. ( 13 ) RELIANCE was placed on the judgment in the case of Hriday Krishna patra and Ors. vs. State of West Bengal, reported in 86 CWN 154. In Hriday krishna (supra) the return was filed on 05. 03. 1972, which is after the date of vesting i. e. on 15. 2. 1971. After the return was filed one family member died in 1972. Then in 1976, the Revenue Officer purporting to act under section 151 of the Code of Civil Procedure wanted to reopen the case on review. That was not permitted by this Court. 03. 1972, which is after the date of vesting i. e. on 15. 2. 1971. After the return was filed one family member died in 1972. Then in 1976, the Revenue Officer purporting to act under section 151 of the Code of Civil Procedure wanted to reopen the case on review. That was not permitted by this Court. The facts here are totally different. So the decision in hriday Krishna (supra) has no relevance. ( 14 ) THE decision in the case Hari Sadhan Bandhopadhyaya vs. State of west Bengal, reported in 1998 (1) CHN 61 also has no application here. The decision in Hari Sadhan (supra) is based on the judgment of Paschim Banga bhumijibi's case. Here those questions are not relevant. Here the only question is, on the date of vesting, what was the family unit of the petitioner. ( 15 ) THE decision in the case of Mousumi Chakraborty vs. Subrata Guha roy, reported in 95 CWN 380 was rendered on the question of proof of a valid hindu marriage. It was held in that case that registration, is not the sole proof of a Hindu marriage to make it valid. ( 16 ) HERE the proof of the petitioner's marriage is not in issue. What is in issue is the date of marriage. So the ratio in Mousumi, Chakraborty (supra) has no relevance here. ( 17 ) THE effect of a certificate of marriage under section 16 of the Special marriage Act, has been clearly stated by a learned Single Bench of this Court in Baby Kar Roy vs. Ram Rati Debi, reported in 78 CWN 799. In paragraph 7 of the judgment, the learned judge held as follows:". . . . . . . . . . . . . the certificate under section 16 he certifies that the parties appeared before him, have declared that a ceremony of marriage has been performed between them and that they have been living together as husband and the wife since the time of their marriage, and that in accordance with their desire to have their marriage registered under this Act it has been so done. He does not certify that the marriage has been solemnised in his presence. It records a declaration by the parties that they have gone through another form of marriage before the registration and have been living as husband and wife. He does not certify that the marriage has been solemnised in his presence. It records a declaration by the parties that they have gone through another form of marriage before the registration and have been living as husband and wife. " ( 18 ) HERE also the marriage certificate on which the petitioner relies is one under section 16 of the Special Marriage Act. This being the value of a marriage certificate under section 16 and which surfaced after the dispute over ceiling area started cannot be taken as proof of the date of marriage. This is more so when as against that there is substantial and cogent evidence that the marriage of the petitioner could not have taken place on 27th February, 1970, as claimed by him. ( 19 ) FOR the reasons discussed above, this Court is unable to disturb the concurrent finding by the appellate authority and the learned Tribunal in this matter. The writ application is therefore dismissed. Interim orders, if any, are vacated. There will be no order as to costs. Writ application dismissed. .