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2009 DIGILAW 649 (CAL)

Nemai Chandra Bag v. STATE OF WEST BENGAL

2009-08-24

TAPAN MUKHERJEE

body2009
Judgment : TAPAN MUKHERJEE, J (1) This appeal at the instance of the plaintiffs is directed against the judgment and decree passed by the Learned First Appellate Court in Title Appeal No. 79 of 1986 reversing the judgment and decree passed by the Learned Trial Court in Title Suit No. 69 of 1984. (2) The appellants claimed to be purchasers of the suit tank from erstwhile owners Bijoyarani Ghosh, Hiranmoyee Ghosh and Jagabandhu Roy having 4 annas, 4 annas and 8 annas share respectively. Bijoyarani Ghosh and other co-sharers retained their respective shares by submitting B form. They used to possess the suit tank jointly by rearing fishes and the appellants-plaintiffs have been possessing the same by rearing fishes in the suit tank and also cutting the branches and plucking the fruits of the trees standing on the bank of the tank. The J.L.R.O. concerned threatened to settle the suit property treating the same to be vested property. So, the plaintiffs filed suit for declaration of title and consequential reliefs. (3) The defendant-State of West Bengal contested the suit contending that vendor Bijoyarani Ghosh did not retain 3 annas 18 gandas 3 karas share in the suit tank measuring 56 decimals out of the total area of 2.28 and as such the same vested to the State and she had no transferable right on the day of purchase by the plaintiffs. Khanda Khatian was opened in the name of Bijoyarani in respect of the balance on 1 ganda and 1 kara share. The list of vested land was sent to the J.L.R.O. Kotulpur and J.L.R.O. took possession of 56 decimals of suit tank not retained by Bijoyarani. The sale deeds are collusive and fraudulent and plaintiffs did not acquire any right, title and interest in the suit land by such deed. (4) Learned Trial Court held that Bijoyarani, the intermediary had retained 4 annas share in the suit tank by submitting B form in obedience to the order No.8 dated 10.12.1971 passed in B.R.Case No. 151 drawn against Bijoyarani and learned Trial Court further disbelieved the claim of taking delivery of possession by the J.L.R.O. concerned under Section 10(2) of the West Bengal Estate Acquisition Act. Learned Trial Court further held that the suit tank is a tank fishery within the meaning of the Act and there is no ceiling limit. Learned Trial Court further held that the suit tank is a tank fishery within the meaning of the Act and there is no ceiling limit. The plaintiffs have acquired title to suit tank fishery by way of purchase. Learned Trial Court decreed the suit. (5) Being aggrieved the State preferred appeal. Learned First Appellate Court held that Bijoyarani did not retain 3 annas 18 gondas 3 karas share of the suit tank and the suit tank vested to the state and in a B.R. Case Bejoyarani retained 1 annas and 1 kara share in the suit tank and remaining 3 annas 18 gandas 3 karas share stood vested with the State of West Bengal. Bijoyarani has no saleable interest in the suit tank beyond her 1 ganda, 1 kara share and deed of sale for transfer of 4 annas share to the plaintiffs is illegal and void. (6) Learned First Appellate Court held that it is immaterial whether the State of West Bengal actually took possession of the vested land in consonance of the provision of Section 10 of the W.B.E.A. Act. Learned Munsif was not justified in holding that the suit tank was a tank fishery. Bijoyarani Ghosh did not mention in the statement appended to B Form that suit tank was a tank fishery. Bijoyarani had no saleable interest in the suit tank beyond 1 gandas and 1 karas share and she could not sell 4 annas share. Learned Munsif was not justified in decreeing the suit. The plaintiffs acquired right, title and interest in respect of the 12 annas share belonging to Jagabandhu Roy and Hiranmoyee Ghosh in the suit tank which they purchased from them and plaintiffs also acquired 1 ganda 1 kara share of Bijoyarani Ghosh which she had in the suit tank. The plaintiffs are not entitled to get decree of declaration of 16 annas share in the suit tank. Appeal was allowed. The judgment and decree of the Learned Trial Court were set aside and the suit was dismissed with cost. (7) Being aggrieved by the judgment and decree passed by the Learned First Appellate Court the plaintiffs have preferred this Second Appeal. Appeal was allowed. The judgment and decree of the Learned Trial Court were set aside and the suit was dismissed with cost. (7) Being aggrieved by the judgment and decree passed by the Learned First Appellate Court the plaintiffs have preferred this Second Appeal. It has been contended by the learned lawyer for the appellants that when the First Appellate Court held that the plaintiffs acquired title in respect of 12 annas share belonged to Jagabandhu Roy and Hironmoyee Ghosh and 1 ganda, 1 kara share of Bijoyarani Ghosh in the suit tank, the suit should have been decreed at least in part and the same should not have been dismissed by the Learned First Appellate Court. Judgment and decree passed by the Learned First Appellate Court cannot stand on the face of the same. Learned counsel for the appellant has further contended that the suit tank is a tank fishery within the meaning of Section 6(1)(e) of the West Bengal Estate Acquisition Act and the 3 annas 18 gandas 3 karas share of Bijoyarani did not vest in the State and J.L.R.O. Kotulpur could not have been taken over possession of the same on 17.5.72. Learned counsel further submits that Bijoyarani Ghosh submitted B Form which was suppressed by the respondent and the Learned First Appellate Court should have held that the plaintiffs have right, title, interest and possession in the suit tank. Substantial questions of law in this appeal are as follows: i) Is the suit tank a tank fishery within the meaning of Section 6(1)(e) of the West Bengal Estate Acquisition Act? ii) Whether the First Appellate Court failed to draw adverse presumption for non-filing of B option form affirmed by Bijoyarani Ghosh? iii) Whether the judgment of the First Appellate Court suffers from perversity? It is undisputed that the suit tank belonged to three co-sharers Bijoyarani Ghosh, Hiranmoyee Ghosh and Jagabandhu Roy having 4 annas, 4 annas and 8 annas share respectively. (8) It is further undisputed that Jagabandhy and Hiranmoyee Ghosh retained their respective shares by submitting B Form. The bone of contention between the parties is retention of the share of the Bijoyarani Ghsoh by submitting B form. (9) The plaintiffs contended that Bijoyarani retained her share in the suit property by submitting B Form where as the defendant has contended that Bijoyarani did not retain the same by submitting B form. The bone of contention between the parties is retention of the share of the Bijoyarani Ghsoh by submitting B form. (9) The plaintiffs contended that Bijoyarani retained her share in the suit property by submitting B Form where as the defendant has contended that Bijoyarani did not retain the same by submitting B form. During evidence P.W.1 one of the plaintiffs says that they purchased the suit tank on perusing the B form return and the possession of the owner Bijoyarani produced two B forms. But none of those B forms has been produced in this case. There is no reason for submission of two B forms. It appears from Exbt. A that B.R. Case was started against Bijoyarani Ghosh and in connection with the said case on 10.12.71 Bijoyarani surrendered 56 cents of suit plot No.5963 as excess land. It further appears that on 17.6.71 Bijoyarani surrendered 48 cents of suit plot No.5963. Bijoyarani was allowed to retain 1 cents of suit plot No.5963 i.e. 1 ganda 1 kara share in the suit tank and the remaining share of Bijoyarani stood vested as she did not retain the same. There is nothing to show that Bijoyarani wanted to retain the suit tank as tank fishery. True it is that there is no ceiling for retention of tank fishery. But the intermediary is to retain the tank fishery by submitting B form. Here the intermediary did not retain the tank fishery by submitting B form and hence the same stood vested and Bijoyarani cannot claim more than 1 ganda 1 kara share in the suit tank. There is no dependable evidence that the State has taken possession of the suit tank. Admittedly, plaintiffs purchased and stepped into the shoes of the erstwhile two cosharers Jagabandhu Roy and Hiranmoyee Ghosh. So, plaintiffs possession of the suit tank as corroborated by the oral evidence cannot be disbelieved. (10) Learned First Appellate Court rightly held that the plaintiffs acquired title in respect of 12 annas share of Hiranmoyee Ghosh and Jagabandhu Roy in a suit tank and they also acquired 1 ganda 1 kara share of Bijoyarani Ghosh in the suit tank. In other words, the plaintiffs acquired 12 annas 1 ganda 1 kara share in the suit tank by way of purchase from erstwhile owners Jagabandhu, Hiranmoyee and Bijoyarani. In other words, the plaintiffs acquired 12 annas 1 ganda 1 kara share in the suit tank by way of purchase from erstwhile owners Jagabandhu, Hiranmoyee and Bijoyarani. The plaintiffs have not been excluded or ousted from possession of the suit tank and they have title to the extent of 12 annas 1 gandas 1 karas share in the suit tank and only 3 annas 18 gandas 3 karas share of Bijoyarani stood vested in the State. As a co-sharer in the suit tank State cannot oust or interfere with joint possession of the plaintiffs in the suit tank and the plaintiffs were entitled to the decree of declaration of title in respect of their 12 annas 1 ganda and 1 kara share and also permanent injunction against the defendant-State restraining the State from interfering with the plaintiffs joint possession of the suit tank. Learned First Appellate Court committed substantial error in law in not allowing the plaintiffs decree of declaration of their said shares in suit tank and also decree for permanent injunction restraining State of West Bengal from interfering with joint possession of the plaintiffs with the State. (11) Plaintiffs have failed to prove that suit tank is a tank fishery. As plaintiffs have failed to prove factum of submission of B form question of drawing adverse presumption for non filing of B form does not arise. The judgment and decree of the Learned First Appellate Court are not sustainable and the same are liable to be set aside. (12) The appeal is allowed on contest. The judgment and decree of the Learned First Appellate Court passed in T.A. 79 of 1986 are hereby set aside. The suit is decreed in part. Plaintiffs title to the suit tank to the extent of 12 annas 1 ganda and 1 kara share is hereby declared. The defendant-State is restrained by way of permanent injunction from interfering with the joint possession of the plaintiff in the suit tank with the State. In the circumstances, I make no order as to costs. Send back the Lower Courts Records with the copy of the judgment as expeditiously as possible. (13) Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.