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2011 DIGILAW 868 (CAL)

Bipin Pal v. STATE OF WEST BENGAL

2011-07-01

TAPAN KUMAR DUTT

body2011
JUDGMENT 1. THIS Court has heard the learned Advocate for the plaintiff/appellant. None has appeared on behalf of the respondents at the time of hearing. The facts of the case, briefly, are as follows: 2. THE plaintiff/appellant filed title suit No. 90 of 1976 against the respondents praying for a decree for declaration of title and injunction. Such suit was placed before the learned Third Munsif, at Tamluk, Midnapore. THE plaintiff’s case, in brief, was that the suit lands measuring 1 acre 22 decimals previously belonged to Manmothonath and Monoranjan Deb and in the year 1355 B.S. one Rohini Dasi, since deceased, who was the predecessor of the plaintiff, took settlement of the suit land in raiyati interest on the strength of an Amalnama dated 26 Chaitra 1355 B.S. on payment of selami to the landlords and since then Rohini was in possession of the suit land till her death. THE plaintiff’s further case was that Rohini paid rent to the Zamindars till 1361 B.S. but because there was no registered deed Rohini’s name was not recorded in the R.S. record-of-right which incorporated the names of the former landlords erroneously. THE plaintiff claimed to be the only heir of Rohini Dasi who died in 1379 B.S. and, thus, the plaintiff inherited the suit lands but as the J.L.R.O. of Raghunath Bari Circle was trying to give temporary settlement of the suit lands to others illegally the plaintiff was compelled to file the suit. The defendant No.1 State of West Bengal contested the said suit by filing written statement denying the material allegations made in the plaint and contending that the suit lands being non-agricultural lands could not be settled orally and the rent receipts and the unregistered Amalnama were all fictitious documents. The defendant No.1 further alleged that the suit lands vested in the State since the intermediaries did not retain the same and the possession of the suit lands was taken by the J.L.R.O. under Section 10(2) of the West Bengal Estate Acquisition Act on 24.11.1958 and those lands were distributed by way of permanent settlement to landless persons by executing "pattas". 3. THE said suit came up for hearing and the learned Trial Court by its judgment and decree dated 29th July, 1985 dismissed the said suit. THE learned Trial Court found that it would appear from Ext. 1 that the Zamindars in consideration of Rs. 3. THE said suit came up for hearing and the learned Trial Court by its judgment and decree dated 29th July, 1985 dismissed the said suit. THE learned Trial Court found that it would appear from Ext. 1 that the Zamindars in consideration of Rs. 99/- gave permanent settlement in respect of the suit lands to the said Rohini Dasi on 26 Chaitra 1355 B.S. THE learned Trial Court found that had it been the intention of the parties that by such document Amalnama was created, then it was necessary to make over possession at the same time to the said Rohini Dasi, which ought to have been followed by a formal kabuliyat. But there is no such satisfactory and cogent evidence with regard to making over possession to the Rohini Dasi not to speak of executing any kabuliyat. THE learned Trial Court further found from Ext. (1) that the intention of the parties was to give the suit land in permanent settlement and in such a case deed of settlement ought to have been registered under the provisions of Indian Registration Act. THE learned Trial Court found that since Ext.1 is an unregistered document, it has to be expunged from the evidence. 4. THE learned Trial Court found that the plaintiff has examined a few witnesses to prove his possession in the suit lands and Ext.3 (certified copy of the R.S. record of right) is the only document which shows that Rohini was in forcible possession of the suit lands. THE learned Trial Court found from Ext.H that the said R.S. record-of4 right (Ext.H) does not show any entry of forcible possession of Rohini Dasi. THE learned Trial Court found from another R.S. record-of-right (Ext.H(2)) that the entry of forcible possession in the name of Rohini Dasi in respect of the suit lands was expunged. THE learned Trial Court observed on perusal of Ext.H(1) (certified copy of the finally published records-of-right) that some persons have been in possession in respect of plot No.304. From Ext.C series the learned Trial Court found that the said plot was distributed to different landless persons by way of "patta." THE learned Trial Court also referred to certain licence case dated 25.3.1970 from where it can be seen that temporary settlement of suit plot No.304 was given to different persons. From Ext.C series the learned Trial Court found that the said plot was distributed to different landless persons by way of "patta." THE learned Trial Court also referred to certain licence case dated 25.3.1970 from where it can be seen that temporary settlement of suit plot No.304 was given to different persons. THE learned Trial Court found from the Commissioner’s report that there are houses and vegetable plants upon the suit land (plot No.304). THE learned Trial Court came to the conclusion that cultivation of the suit lands by the plaintiff is not true. The learned Trial Court also found that no case under Section 10(2) of the West Bengal Estate Acquisition Act could be shown before the Court. The learned Trial Court while considering a certain exhibit being the entry register of taking possession of lands came to the conclusion that since the said entry register was maintained in due course of official business and it shows that possession of the suit plot was taken over by the Government and there is no reason to disbelieve the fact that possession of the suit land was taken over by the Government. The learned Trial Court found that plaintiff was not in possession of the suit plot at any point of time and the question of adverse possession of the plaintiff does not arise. The learned Trial Court found that he has also no hesitation to hold that Ext.1 has been manufactured for the purpose of the suit in order to create evidence and the plaintiff has no right, title and interest in respect of the suit lands and the learned Trial Court dismissed the suit. 5. THE plaintiff/appellant being aggrieved by and dissatisfied with the learned Trial Court’s judgment and decree preferred title appeal No. 358 of 1985 and such title appeal was placed before the learned First Court of Additional District Judge, Midnapore. THE learned Lower Appellate Court by judgment and decree dated 12th September, 1986 dismissed the said appeal and affirmed the judgment and decree passed by the learned Trial Court. THE learned Lower Appellate Court recorded, inter alia, that Ext.1 is the Amalnama, Ext. 2 and 2(a) are the rent receipts granted by the Deb landlords. THE learned Lower Appellate Court further observed that admittedly Ext. THE learned Lower Appellate Court recorded, inter alia, that Ext.1 is the Amalnama, Ext. 2 and 2(a) are the rent receipts granted by the Deb landlords. THE learned Lower Appellate Court further observed that admittedly Ext. 3 shows that the name of Rohini Dasi has been shown to be in forcible possession with respect to the two suit plots and that the plot No. 274 has been recorded as a pathway and plot No.304 has been recorded as "Danga Puratan Patit". According to the learned Lower Appellate Court the evidence of P.W.1 cannot prove the settlement by Amalnama. THE learned Lower Appellate Court noted that P.W.3 is the witness who has proved the Exts. 1 and 2 series and has stated that he was present at the time of grant of the suit lands by way of settlement in favour of Rohini Dasi by the Deb landlords but Ext. 1 does not give out that there was any witness to such settlement, and that the Ext. 1 was executed by Manmothonath Deb, Monoranjan Deb and also one Sashi Bhusan Deb but the name of Sashi Bhusan Deb does not appear in the plaint or in any other document. THE learned Lower Appellate Court disbelieved that P.W.3 was present at the time of execution of Ext.1 or at the time of grant of rent receipts Exts.2 and 2(a). THE learned Lower Appellate Court noted that an order of temporary injunction was granted in favour of the plaintiffs on 14.9.1976 but it appears that the learned Lower Appellate Court also recorded that the defendant no.1 had stated in connection with the certain J. Misc. Case that plot No. 274 had been taken in possession in Misc. case No. 55 of 1977-78. THE learned Lower Appellate Court held that Exts.A, C series and D establish the defendant’s case that the suit lands were so distributed by "utbandi bandobasta" and "patta" between 12 persons. THE learned Lower Appellate Court relied upon Ext. I which according to the said learned Court also proves the defence case. THE learned Lower Appellate Court found from the records-of-rights submitted by the plaintiffs that there was an entry in the relevant column that Rohini Dasi was forcibly possessing the suit plots but held that forcible possession is not a legal one. I which according to the said learned Court also proves the defence case. THE learned Lower Appellate Court found from the records-of-rights submitted by the plaintiffs that there was an entry in the relevant column that Rohini Dasi was forcibly possessing the suit plots but held that forcible possession is not a legal one. THE learned Lower Appellate Court held that there are certain laches on the part of the State inasmuch as the record-of-right submitted by the State does not show forcible possession of Rohini Dasi or her successor in respect of the suit plots and the learned Advocate for the appellant raised a question as to how the record-of-right could be corrected without any proceeding under Section 44 of the West Bengal Estate Acquisition Act. THE learned Lower Appellate Court also noted the submission made on behalf of the appellant that if the fact of granting of "patta" has to be accepted then the defence case that the land was acquired under Section 10(2) of the West Bengal Estate Acquisition Act is a myth. But the learned Lower Appellate Court accepted the submission made on behalf the State-respondent that by finding fault with the actions of the State the appellant cannot prove his own case. THE learned Lower Appellate Court came to the conclusion that the plaintiff has no right, title, interest and possession over the suit properties and the plaintiff has also not acquired any right, title or interest in respect of the suit land by way of adverse possession. THE learned Lower Appellate Court dismissed the said title appeal. 6. CHALLENGING the aforesaid judgment and decree of the learned Lower Appellate Court the appellant has preferred the instant second appeal in this Court. The learned Advocate for the plaintiff/appellant submitted that Manmotho and Monoranjan Deb were the original owners of the suit property (1.22 acres of land) and from the said Debs the said Rohini took settlement by way of an Amalnama in 1355 B.S. It is the plaintiff’s case that the said Rohini had been in possession of the suit property till her death and had paid rents to the Zamindars but as during the time of revisional settlement there was no registered deed the said land was erroneously recorded in the name of the Zamindars. The plaintiff claimed to be the only heir of Rohini and thus inherited the suit property. The plaintiff claimed to be the only heir of Rohini and thus inherited the suit property. The said learned Advocate submitted that as far as Rohini is concerned the suit property could not have vested as it was only 1.22 acres. He also submitted that the Debs were not in khas possession of the suit land after it was settled in favour of Rohini. He submitted that the Amalnama, even if unregistered, is admissible in evidence and in the instant case there were payments of rent and grant of receipts after the Amalnama came into existence. The said learned Advocate further submitted that no paper and/or documents were produced by the contesting defendant regarding the alleged proceedings under Section 10(2) of the West Bengal Estate Acquisition Act, 1953. He submitted that in the R.S. record-of-right produced by the plaintiff it was shown that Rohini was in forcible possession of the suit property but such entry was subsequently struck-off without any notice to either Rohini or the plaintiff. It was further submitted on behalf of the plaintiff/appellant that the distribution of the land was done by the State-respondent in favour of alleged landless persons when an interim order of injunction passed by the learned Trial Court was in force and therefore such distribution of the land by the State-respondent was not valid. He further submitted that the State-respondent did not produce any document regarding the alleged Misc. Case No. 52 of 1958-59. 7. THE said learned Advocate also drew the attention of this Court to the order dated 22.06.09 passed in this appeal. It appears from reading the said order and the Section Officer’s (S.A. Section) note dated 8.5.09 that the Exhibits A, B, C to C(8), D, H to H(2) and I cannot be taken into account at the time of hearing of the appeal as those documents have not been refiled by the defendant concerned. 8. THE learned Advocate for the appellant cited a decision reported at 71 CWN 681 (BIJOLI PROVA NANDY CHOWDHURY V. H.C. DUTTA and Ors.) in support of his submission that an Amalnama, even if unregistered, is admissible in evidence. THE Hon’ble Court in the said reports considered inter alia a judgement reported at ILR 33 Cal 502 wherein it was held that an Amalnama did not require registration and even if it is unregistered it is admissible in evidence. THE Hon’ble Court in the said reports considered inter alia a judgement reported at ILR 33 Cal 502 wherein it was held that an Amalnama did not require registration and even if it is unregistered it is admissible in evidence. The said learned Advocate cited another judgement reported at AIR 1925 Cal 452 (Abdul Samad and another -V- Gunendra Krishna Roy and another) wherein it was held that where the genuineness of a rent receipt is sworn to by the tenant by whom the rent has been paid, that is legally sufficient to prove the receipt notwithstanding that the person whose signature it bears has not been examined. The said reports also supported the view that where rent receipts were admitted in evidence without objection in the Court of First Instance, no objection could be taken in the Appellate Court that they were not properly proved. 9. THE said learned Advocate cited another judgment reported at 75 CWN 228 (Mohan Lal Gupta -V- Achhulal Saha and Ors.) wherein it was held that in the said case notices were issued under Section 10(2) of the West Bengal Estates Acquisition Act, 1953 and all those orders were made on a printed sheet which was not in the "Form 3" prescribed under Rule 7(1) of the Rules framed under the said Act of 1953 and the printed sheet used was not substantially similar to the prescribed form and for that reason the order under Section 10(2) was not legally made. THE Hon’ble Court further held that the manner of service of notice under Section 10(2) of the said Act of 1953 is also prescribed under the said Rules and the purported service of notice in the said case did not adhere to the prescribed manner and as such there was no proper service of any order under Section 10(2) of the said Act. THE Hon’ble Court held in the said case that the State of West Bengal was not entitled to get into possession of the lands concerned in the said case. In so far as the instant case is concerned there is no paper or document on record in respect of any alleged proceedings under Section 10(2) of the said Act of 1953. Thus, it cannot be said in the instant case that the State-respondent took any possession of the land in dispute under Section 10(2) of the said Act of 1953. Thus, it cannot be said in the instant case that the State-respondent took any possession of the land in dispute under Section 10(2) of the said Act of 1953. 10. THE learned Trial Court held, considering a certain reported case, that an Amalnama, without registration is admissible in evidence. It further held that it appears from Ext. 1, that the Zamindars, in consideration of a certain sum of money, gave permanent settlement of the suit lands to Rohini Dasi on 26th Chaitra, 1355 B.S. THE learned Trial Court found that Ext. 3 shows that Rohini was in forcible possession of the suit lands but it relied upon Exts. H, H(1) and H(2) to come to the conclusion that Rohini’s name was expunged from the record-of-right and also relied upon Ext. C series to find that the suit plot was distributed to different landless persons by way of "patta". THE learned Trial Court recorded that "it is true that no case u/s 10(2) of WBEA Act has been forthcoming before the Court". THE learned Trial Court erroneously relied upon a certain Register to come to the conclusion that possession was taken over by the Government concerned. In view of the order dated 22.06.09 the said Exts. C series and H to H(2) cannot be considered since such exhibits have not been refiled. THE fact remains that Rohini was in possession of the suit land and her name had appeared in the R.S. record-of-right but subsequently her name was struck-off from the records-of-right; without any proceeding for rectification of the record-of-right, at least, nothing is on record to show that a proper procedure for rectification of the record-of-right was followed. The learned Lower Appellate Court relied upon, inter alia, Exts. A, B, C to C(8), D, H to H(2) and I in support of his findings but in view of the aforesaid order dated 22.06.09 the said exhibits cannot be taken into account at the time of finally deciding this appeal. Thus, the very basis of the impugned judgment is substantially weakened. Thus, it cannot be held that possession of the suit land was taken by the State-respondent or the State-respondent settled such land in favour of some persons. That apart, in view of the interim order of temporary injunction passed by the learned Trial Court, the State-respondent could not have validly transferred the suit land in favour of landless persons. 11. Thus, it cannot be held that possession of the suit land was taken by the State-respondent or the State-respondent settled such land in favour of some persons. That apart, in view of the interim order of temporary injunction passed by the learned Trial Court, the State-respondent could not have validly transferred the suit land in favour of landless persons. 11. THE learned Lower Appellate Court also records that there was an entry in the record-of-right that Rohini was forcibly possessing the suit plots but such forcible possession was not a legal one. THE question in this case is that whether the State-respondent, which was the only contesting party in the suit, could successfully prove that it had taken possession of the suit land after it allegedly vested and settled the land in favour of landless persons. In this case the State-respondent has not been able to prove that the suit land had vested in the State or that possession was ever taken by the State or that it was settled in favour of some landless persons in a legal way. THE learned Lower Appellate Court recorded in the impugned judgement that there are certain laches on the part of the State. No dispute was raised that the plaintiff is the legal heir of Rohini. THE learned Lower Appellate Court unnecessarily went into the question whether or not P.W.3 was present at the time of execution of Ext.1 as well as at the time of grant of rent receipts. THE genuineness of the rent-receipts Exts. 2 and 2(a) cannot be disputed as the case reported at AIR 1925 Cal 452 (supra) would show and as such it is not important to know as to whether or not P.W. 3 was present at the times, as aforesaid. 12. THE learned Lower Appellate Court erroneously laid emphasis on the fact that the plaintiff did not call for any document from the Sherista of the former landlords as the documents produced by the plaintiff in evidence were sufficient to prove the plaintiff’s case. None had appeared on behalf of the respondents to contest the appeal. In view of the discussions made above, this Court is of the view that the learned Trial Court was wrong in dismissing the suit and the learned Lower Appellate Court has erred in dismissing the title appeal concerned. None had appeared on behalf of the respondents to contest the appeal. In view of the discussions made above, this Court is of the view that the learned Trial Court was wrong in dismissing the suit and the learned Lower Appellate Court has erred in dismissing the title appeal concerned. Accordingly, the impugned judgements and decrees of the learned Courts below are set aside and the instant second appeal is allowed. The plaintiff’s right and interest in the suit property, as prayed for in prayers (Ka) and (Kha) of the plaint, is hereby declared but no decree can be passed with regard to the prayer of the plaintiff for permanent injunction in the present proceeding. It is not clearly known as to who are in actual physical possession of the suit property as on this day and whether or not any amendment of the plaint in this regard will be required. For such purpose only the matter is sent back on remand to the learned Lower Appellate Court which shall consider the question of granting any decree for permanent injunction after it ascertains and finds out the persons who are in actual physical possession of the suit property. For such purpose the plaintiff/appellant will be entitled to apply for amending his plaint with regard to possession in respect of the suit property and also for a local inspection of the suit property before the learned Lower Appellate Court. If such applications are made the learned Lower Appellate Court shall dispose of the same as early as possible in accordance with law and thereafter proceed with and dispose of the title appeal in accordance with law, without any unnecessary delay. 13. THERE will, however, be no order as to costs. Urgent Certified Xerox copy of this Judgment, if applied for, be given to the parties on compliance all necessary formalities.