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2008 DIGILAW 460 (CAL)

Mrinal. Kanti Bera v. STATE OF WEST BENGAL

2008-04-30

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

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JUDGMENT:- (1) THIS application has been filed against the judgment and order of the learned Land Reforms and Tenancy Tribunal dated 11th December, 2006. By the judgment and order impugned, the order of vesting passed by the revenue Officer in the Big Raiyat case has been upheld. (2) THE sum and substance of the case of the petitioners is that the petitioners are the heirs and legal representatives of one Sudhangshu Sekhar bera, since deceased, who was a raiyat admittedly. During his life time, there has been a Big Raiyat case being initiated and as per direction of the Revenue officer, said Sudhangshu Sekhar Bera, since deceased, filed returns in "b" form, though his case was that he was not required to file any "b" Form by reason of the fact that at the relevant point of time when the Big Raiyat case was initiated, he did not hold any land beyond the permissible ceiling limit. (3) DURING hearing before the Revenue Officer, quite good numbers of civil Courts judgments and decrees were produced. It appears that the Revenue officer did not accept those civil Courts judgments and decrees on the plea that the records of rights were not rectified pursuant thereto; rather the judgments and decrees were not acted upon. Therefore, all the lands covered by the said judgments and decrees were treated to be the lands of Sudhangshu sekhar Bera, since deceased, and in that process, it was found that there has been a substantial quantity of excess vacant land and he was then asked to exercise option for retention. (4) CHALLENGING the aforesaid order of vesting, the petitioners before us filed a writ petition in this Court being C. O. No. 3069 (W) of 1988. The said order of vesting was passed in the year 1987, though the proceeding was initiated long time back. This Court, then having jurisdiction over the subject matter, admitted the writ petition for hearing and passed an interim order staying operation of the impugned order passed in the Big Raiyat Case No. S-157 and particularly the order dated 3rd December, 1987, until further orders. (5) THEREAFTER, this case was transferred to the learned Tribunal in view of the same having been formed and the said application was re-numbered as T. A. 632 of 2005 on which the judgment and order impugned has been passed. (5) THEREAFTER, this case was transferred to the learned Tribunal in view of the same having been formed and the said application was re-numbered as T. A. 632 of 2005 on which the judgment and order impugned has been passed. (6) THE learned Tribunal, as it appears to us, has totally ignored the civil Courts judgments and decrees on different grounds altogether, observing that some of the decrees are not binding as the State of West Bengal was not a party and it was further observed that the judgment and decree of the civil court is null and void as this was passed contrary to the express provision of law which provides for prohibition of transfer of the land from the date of initiation of the Big Raiyat case. It seems to us that the learned Tribunal has proceeded on the basis as if the decrees were passed based on a transfer made by sudhangshu Sekhar, since deceased, after the Big Raiyat case was initiated. Therefore. the learned Tribunal did not interfere with the order of the Revenue officer. (7) MR. P. B. Sahoo, learned Counsel submits, while assailing the impugned judgment and order that the approach of the learned Tribunal is totally erroneous as all the decrees passed by the civil Court were passed against the State of West Bengal by the competent Court and even some of the decrees were appealed against unsuccessfully and one of such ex-pane decree was also sought to be got set aside by the Court unsuccessfully, by the state of West Bengal. He further submits that the cause of action in respect of all the suits arose prior to the initiation of the Big Raiyat case and that the basis of filing of the suits, in all those cases was either by way of transfer or by way of inheritance, which took place prior to the Big Raiyat case was initiated. When such transfer or inheritance took place, there had been no contemplation that the Big Raiyat case would be initiated so that one can thought of that transfers were sought to be made to defeat the future legislation to come. (8) HE further submits that the learned Tribunals approach is, therefore, totally erroneous, both on fact and in law. When such transfer or inheritance took place, there had been no contemplation that the Big Raiyat case would be initiated so that one can thought of that transfers were sought to be made to defeat the future legislation to come. (8) HE further submits that the learned Tribunals approach is, therefore, totally erroneous, both on fact and in law. Moreover, when those decrees were tried to be challenged by the State of West Bengal and the said challenge was unsuccessful, the decrees have become subsisting, final and binding and State of West Bengal or for that matter, the Revenue Officer, cannot ignore the same under any circumstances. The learned Tribunal has unnecessarily, in collateral proceedings declared the said decrees being null and void. (9) MR. A.N. Banerjee, appearing for the State submits that those decrees were really obtained to defeat the Big Raiyat case and consequently escape vesting. The decrees were really collusive and the suits were filed by the kins and relations of Sudhangshu Sekhar, since deceased. A collusive decree can always be treated to be a fraudulent one and it can be challenged at any stage and at any proceedings, even in a collateral proceeding. He further submits that had those decrees been genuine, they would have taken steps for rectification of the record of rights. But this was not done and as all the lands stood in the name of Sudhangshu Sekhar, since deceased, and going by the record of rights the Revenue Officer rightly declared that there had been excess of land and so it was vested. The learned Tribunal has, while affirming this order, correctly proceeded in the eye of law ignoring the civil courts decrees. He further submits that the learned Tribunal on fact and law has decided extensively with reasons and this Court should not interfere with the same. (10) WE have heard the learned Counsels for the parties and considered the respective submissions. The point for decision in this case is as to whether the learned Tribunal was justified in upholding the order of vesting passed by the Revenue Officer or not. To answer the aforesaid question, actually we are called upon to decide whether the Revenue Officer as well as the learned tribunal was justified in ignoring the civil Courts decrees in the said Big Raiyat case or not. To answer the aforesaid question, actually we are called upon to decide whether the Revenue Officer as well as the learned tribunal was justified in ignoring the civil Courts decrees in the said Big Raiyat case or not. (11) WE have examined the decrees and we find that in each and every suit, on which the decrees were passed, the State of West Bengal was a party and there has been a declaration of right, title and interest in favour of the plaintiffs. Some of the decrees were sought to be taken to appeal Court by the state of West Bengal, however, this was not successful. Hence, those decrees have become final and binding. We find that one of such decrees, which was an ex-parte one, sought to be got set aside by the same Court but it was again unsuccessful. The recording of the learned Tribunal that the State of West bengal was not a party, in our view, is patently wrong on the face of record. We have no doubt in our mind, while scrutinizing all the decrees and records that those decrees were passed against the State of West Bengal and State of west Bengal did their best to get the decrees upset, but it was unsuccessful. (12) ACCORDING to us, the Revenue Officer should not have ignored the decrees on the plea that the record of rights was not corrected on the basis of the decrees. We think that whether the record of rights was corrected or not, the effect of the decree is never obliterated nor eliminated as the record of rights does not create and/or change the right in any immovable property and it merely reflects the possessory right and some times it has presumptive value of ownership as opposed to conclusive proof thereof. On the strength of the decree, one can apply for rectification of the record or rights at any time, even till today, if necessary. Just because it was not done, value of the decrees cannot be ignored at all. The Revenue Officer perhaps mis-directed himself while ignoring the decrees, resorting to the aforesaid plea. (13) WE cannot uphold such findings and logic of the Revenue Officer as well as the learned Tribunal. We have no option but to set aside the order of the learned Tribunal and the order of vesting passed by the Revenue Officer. The Revenue Officer perhaps mis-directed himself while ignoring the decrees, resorting to the aforesaid plea. (13) WE cannot uphold such findings and logic of the Revenue Officer as well as the learned Tribunal. We have no option but to set aside the order of the learned Tribunal and the order of vesting passed by the Revenue Officer. We direct the Revenue Officer concerned to take note and give effect to the civil Courts decrees and orders, produced before him and annexed to this petition. While doing so, he will give a hearing to the parties concerned and in the process if he finds that the quantum of land covered by all the decrees are required to be excluded, then obviously the same shall be excluded and in undertaking this exercise, if any quantum of land is found to be excess, then certainly to that extent, vesting can be done. But if no excess land is found while giving effect to the decrees, obviously, the Big Raiyat case has to be dropped. If any step has been taken by the Revenue Officer or any mode of settlement including granting Patta, has been done in any manner, the same will stand cancelled and set aside, until a fresh decision is taken. After fresh decision is taken and if any order of vesting is passed, obviously fresh steps may be taken in respect of the vested land, if any. This exercise shall be completed within a period of three months from the date of communication of this order. (14) THUS, this application succeeds. There will be no order as to costs. (15) WITH the aforesaid order, no separate order need be passed on the application being CAN No. 4248 of 2007 and the same is accordingly disposed of.