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2012 DIGILAW 679 (CAL)

Pinaki Ranjan Maity v. Sabuj Kumar Sahoo

2012-07-24

TARUN KUMAR GUPTA

body2012
Judgment TARUN KUMAR GUPTA, J. 1. THESE two appeals arising out of a common judgment and appellate decree affirming the judgment and decree of the learned Trial Court passed in two suits instituted by the plaintiff respondents, are taken up for analogous hearing. 2. THE facts of this case may be summarized as follows:- One Rani Haripriya who was the proprietor of a temporary settled estate under Touzi No.2717 of Midnapore Collectorate granted a tenure sometime in the year 1879 to one Nanda Lal Roy in respect of 879 Bighas out of about 904 Bighas, as alleged by the defendants, more or less of Kanthibari by a registered patta, the actual area under settlement being disputed. On the immediate south-west of this Chawk lay the river known as Rasulpur or Bagda river. With the rescission of what might be called perennial flow of this river from a portion of its bed emerged lands covering a large area which gradually appeared to have formed a part of the lands appertaining to the Chawk. In or about the year 1910, under the then settlement operation a new Touzi No.3037 was created which comprised also the accreted lands as well as a strip of 25 Bighas land which, as claimed by the defendants, were said to have been reserved by Rani Haripriya at the time of grant of tenature to Nandalal Roy. In or about the year 1917, the heirs of Nanda Lal Roy sold their tenure to the predecessor of Krishna Prasad Panigrahi and to other defendant Nos. 23 to 25. In 1920 the State Government which then took over the management of Rani's estate conferring only Malikana rights on her or her heirs in respect of the Touzi brought two title suits in the Court of Munsif at Contai in the District of Midnapore, against Panigrahis and some of the present plaintiffs or their predecessors in interest who were said to have been possessing the lands as occupancy raiyats under the Panigrahis tenure-holder for declaration of its title to the then accreted char lands and for recovery of possession and in the alternative for assessment of rent. Although these two suits for recovery of possession were dismissed on a finding that the disputed lands were accretioins to the disputed Touzi, the Court passed a decree on the alternative prayer for assessment of rent of revenue in favour of the State government against the Panigrahi defendants at a certain rate per Bigha. In course of time, in or about the year 1937 in consequence of revisional settlement operation these char lands were recorded as part of the Touzi No.2717 and the other estate Touzi No.3037 was abolished. In or about the year 1944, the Panigrahis sold the tenure to one Bhupendra Nath Dinda, since deceased, husband of Kadambini Dinda (defendant No.1 in the suit). Since thereafter as the Rasulpur river was gradually drying up resulting in formation of further 'char lands' on a contiguous portion of the same river bed, Bhupendra brought a title suit in 1949 against the State Government for declaration of his title as a tenure ?holder and for consequential reliefs in respect of these lands which, however ended in a compromise. In or about the year 1950, disputes arose between Bhupendra and the present plaintiffs in both the suit regarding possession of these char lands and proceedings under section 145 of the Code of Criminal Procedure were started. These proceedings, however, ended in favour of Bhupendra who was found and declared by the S.D.O. Contai, by its order dated 14.08.1951 to be in actual possession of these char lands. Thereafter, in 1952 several plaintiffs, respondent Nos. 1 to 10 jointly instituted a suit for declaration and recovery of possession of these char lands and for other relief claiming their tenancy right as occupancy raiyats in respect of the portions of such lands forming such tenancies under the Panigrahis. In or about the year 1954, one Sudhir Chandra Panigrahi alone as plaintiff instituted another suit claiming same relief in respect of a portion of such land forming part of his tenancy as occupancy raiyat. 3. THE principal defendant along with some other defendants who were alleged to be in actual possession of these disputed lands, contested the suit. In or about the year 1954, one Sudhir Chandra Panigrahi alone as plaintiff instituted another suit claiming same relief in respect of a portion of such land forming part of his tenancy as occupancy raiyat. 3. THE principal defendant along with some other defendants who were alleged to be in actual possession of these disputed lands, contested the suit. Their main defence amongst various others was that the lands in dispute formed part of the 25 Bighas of land reserved by Rani Haripriya at the time of granting the tenure in favour of Nandalal Roy whose heirs later on sold their tenure to the Panigrahis and they could not claim any tenancy right or possession as tenants in respect of the disputed lands under the Panigrahis or for that matter under the husband of defendant No.1. 4. DURING pendency of these suits, the State of West Bengal at the instance of the plaintiffs was brought on record as added defendant on the allegation that the entire interest in the tenure of Bhupendra was auction purchased by the State in a sale in execution of certificate against him under Bengal Public Demands Recovery Act. 5. THE State appeared and contested the suit on presenting written statement in which it challenged amongst other things the maintainability of suit for want of notice under Section 80 of the Civil Procedure Code and also in consequence of vesting of Estate under the West Bengal Estate Acquisition Act. 6. LEARNED Trial Court decreed the suit on contest. Learned Lower Appellate Court dismissed the appeal preferred by aggrieved defendants mainly on the ground that the claim of the contesting defendant was barred by principle of res judicata in view of the judgment of earlier suits of 1920. 7. DEFENDANT No.1 and other aggrieved defendants preferred two second appeals being S. A. No.1622 of 1965 and 1623 of 1965. This Court on analogous hearing of these appeals allowed the same by setting aside the judgment and decree of learned Lower Appellate Court and by sending back the matter on remand to learned Lower Appellate Court for taking a fresh decision. In the order of remand learned Lower Appellate Court was further directed to decide the question involved in the additional ground taken before this Court with liberty to take additional evidence both oral and documentary, if adduced by the parties. 8. In the order of remand learned Lower Appellate Court was further directed to decide the question involved in the additional ground taken before this Court with liberty to take additional evidence both oral and documentary, if adduced by the parties. 8. IN terms of said judgment of remand learned Lower Appellate Court has passed a fresh judgment and decree dated 29th August, 1989 affirming the judgment and decree of learned Trial Court passed in connection with Title Suit No.24 of 1960 (being renumbered from Title Suit No.181 of 1954) analogously heard with Title Suit No.20 of 1960 (being renumbered from Title Suit No.101 of 1952). 9. AT the time of admission of these second appeals learned Division Bench observed that these appeals would be heard on the grounds No. III, XXIII and XXIV in SAT No.3609 of 1989 and on the grounds No. III, XXI and XXV of SAT No.3610 of 1989. 10. LEARNED counsel for the appellants submits that earlier judgment and decree dated 11th May, 1965 passed in Title Appeal No.85 of 1961 and 86 of 1961 were set aside by this Court by order dated 21st June, 1974. It is further submitted that by said order of 21st June, 1974 the matter was remanded back to learned Lower Appellate Court for fresh decision in consideration of the following points. (i) Whether the findings in the earlier suits of 1920 instituted by the government against the Panigrahis and other occupancy raiyats as to the possession would operate as resjudicata in the present suits. (ii) Whether notice under Section 80 of the Code of Civil Procedure was necessary when the suit lands were recorded in the name of State Government under the settlement of 1910 and 1937 and moreover by a certificate proceeding the State Government auction purchased the entire right, title and interest of Bhupendranath Dinda in respect of entire Chawk land. (iii) Whether the plaintiffs-raiyats are to be deemed as intermediates and their interest vested to the State with effect from 14th April, 1956 and so the suits for declaration and recovery of possession have been ceased to be maintainable and should be dismissed. (iii) Whether the plaintiffs-raiyats are to be deemed as intermediates and their interest vested to the State with effect from 14th April, 1956 and so the suits for declaration and recovery of possession have been ceased to be maintainable and should be dismissed. Learned counsel for the appellant defendants further submits as follows:- (1) At the time of deciding with reasons on remand as to the identification as well as the identification as to the position of the accreted land the learned Appellate Court below has misinterpreted the statements of patta dated 1879 (Exbt. 'A') and the sale deed dated 24.06.1917 without considering the fact as to the placing of 25 Bighas of land kept by Rani Haripriya out of her 904 Bighas of land and 17 Bighas of land kept by Nandalal for himself. (2) The learned Appellate Court below has wrongly interpreted as to the identification of Char land. (3) It is also erroneous finding of the learned Appellate Court below is that "one important aspect as remained undisputed that Panigrahi's tenure extended upto the edge of the Bagda river.' (4) In fact, relying on the judgments of 7 Title Suits of 1920 as absolute the learned Court below has decided as to the possession of the Panigrahis and the occupancy tenants. The learned Appellate Court below ought to have considered that in those title suits the instant defendants / appellants were not the parties and as such the same could not be binding upon the defendants / appellants. The lands in question involved in the aforesaid 7 Title Suits of 1920 are also a part of the Char Land and question of accretion of the suit land from the said land does not arise at all. (5) The learned Appellate Court below has wrongly held that "There is no escape from the conclusion for all practical purposes the river Bagda has always been treated as southern boundary of the tenure holding of Nandalal and his successors", without considering the placing of 25 Bighas of land which was kept by Rani Haripriya for herself at the South West side of the Nandalal's land. (6) To decide over the possession of the plaintiffs on the Char Land, the learned Appellate Court below did not consider the finally published record of rights prepared under Section 103A of the Bengal Tenancy Act, 1885 at the time of revisional settlement in the year 1910 and 1937 wherein Char Land had been recorded in the name of Rani Haripriya as well as 'Bharat Samrat' and to that end no step was taken by the plaintiffs and / or their predecessors-in-interests although those records of rights have duly been exhibited as Exbt. 'S' (78) and Exbt. 'S' (77) filed by the defendants. (7) The learned Appellate Court below has also not considered at all the genuineness of Amalnama and the rent receipts which has been declared false and antedated in the judgment of the Criminal Proceeding being Misc. Case No.135 of 1950 under Section 144 of Cr. P. C. which was confirmed by the Hon'ble High Court and the same was also held in the judgment of Title Suit No.216 and 217 of 1954 as per Exbt. "C" (2) filed by the defendants. (8) That learned Appellate Court below has come to the conclusion wrongly, without any positive evidence to the effect that the possession of the plaintiffs of the present two cases have continued through their predecessors-in-interest as well as through them till 1950 when they were dispossessed i.e., for more than 30 years although there is no evidence as to the possession and dispossession of the plaintiffs at any material time by anyone. (9) Without considering question of dispossession on evidence the learned Appellate Court below has come to the conclusion erroneously that the plaintiffs were dispossessed for 30 years although at no material time, in fact, the plaintiffs and / or their predecessors-in-interest were in possession of the Char land and so the learned Appellate Court below misdirected himself in holding that the plaintiffs should be deemed to be always in possession and ignoring altogether that Section 6 of the West Bengal Estates Acquisition Act requires actual khas possession. (10) The learned Appellate Court below has also held in contravention of the remand order by holding that 'Their Lordships have already observed that in the given circumstances a notice under Section 80 of the C. P. C. was not necessary. (10) The learned Appellate Court below has also held in contravention of the remand order by holding that 'Their Lordships have already observed that in the given circumstances a notice under Section 80 of the C. P. C. was not necessary. (11) In deciding the issue concerning the maintainability, prayer for declaration of title and recovery of possession the learned Appellate Court below has erroneously held that it is only the pendency of the suit that prevented them from exercising of their right to retain the concerned land by filing the 'B' Form without coming to the conclusion as to the possession and dispossession of the plaintiffs on evidence at any material time in respect of the suit land and without considering the provisions of the Sections 4 and 6 of the West Bengal Estates Acquisition Act and also the provisions of the alluvion and delluvion regulations as well as acts. 11. THE impugned judgments and decrees are liable to be set aside by this Court. 12. IN support of his contention he refers the following judgments:- (2010) 12 Supreme Court Cases 740 (Dinesh Kumar versus Yusuf Ali), (2003) 4 Supreme Court Cases 161 (Bondar Singh versus Nihal Singh), AIR 2005 Supreme Court page 3079 (Phool Pata and another vs. Vishwanath Singh and others), (2009) 3 SCC page 287 (Narendra Gopal Vidyarthi vs. Rajat Vidyarthi), (2011) 1 SCC page 158 (D. R. Rathna Murthy vs. Ramappa), AIR 1977 SC page 5 (Gurucharan Singh vs. Kamla Singh and others), AIR 1963 Supreme Court 454 (Suraj Ahir and others vs. Prithinath Singh and others), AIR 1991 Allahabad 226 (Govind Laxman Solapurkar vs. Dattatraya Damodar Kelkar), AIR 1985 Calcutta 200 (Himjit Construction vs. Tarun Sarkar), AIR 1981 Supreme Court 977 (K. M. Patel vs. A Firm of Mohamadhussain Rahimbux), AIR 1981 Supreme Court 981 (Dev Raj Dogra and others vs. Gyan Chand Jain and others), AIR 1967 SC page 450 Srichand K. Khetwani vs. The State of Maharashtra), AIR 1997 Calcutta page 120 (Anwar Hossain Sheikh and others vs. Santi Kumar Mondal and others) and (2010) 13 SCC page 769 (Jagtu vs. Suraj Mal and others). 13. MR. S. P. Roy Chowdhury, learned senior counsel for the respondents/ plaintiffs, on the other hand, submits as follows:- (1) The present appeal by the heir of the original defendant No.1 Kadambini Dinda, since deceased and by some defendants claiming through her is not maintainable. 13. MR. S. P. Roy Chowdhury, learned senior counsel for the respondents/ plaintiffs, on the other hand, submits as follows:- (1) The present appeal by the heir of the original defendant No.1 Kadambini Dinda, since deceased and by some defendants claiming through her is not maintainable. Interest of the husband of the defendant No.1 during pendency of the suit had been auction purchased by the State of West Bengal on 19.03.1955 and possession had also been taken (Vide Exhibit No.10 and 11). Here it is pertinent to state that the defendant No.1 Kadambini Dinda claimed to have acquired interest of her husband / Bhupendra Nath Dinda on his death. In such circumstances the defendant No.1 had lost her title or interest, if any, and could not have filed an appeal or to prosecute the appeal further after extinguishment of right, if any, due to the auction purchase by the State of West Bengal. After the auction sale in favour of the State of West Bengal, possession was taken by the State. Therefore, the defendants could not tack government's possession to their own. The plaintiffs would recover possession from the state and the defendant No.1 or persons claiming through her cannot claim that their possession could be tacked with the possession of the state. Defendants having lost their right due to auction purchase by the State in respect of the property in dispute are not parties adversely affected by the decree and as such they are not parties aggrieved within the meaning of Section 96 of the Code of Civil Procedure and they have no right to file the first appeal and / or second appeal. Accordingly the appeals are incompetent. (2) The State did not file any appeal in the Court below or in the Hon'ble High Court and has virtually accepted the judgments of the courts below. (3) In 1920 suits Panigrahis and some of the plaintiffs' predecessors were parties and suit lands were found to be accretions to the respective tenancies and in view of the Regulation 4 of Bengal Alluvian and Diluvian Act, 1825 accreted land should be taken to be attaching to the said tenancies and when in that 1920 suits brought by state impleading the raiyats, it would indicate that raiyats had interest. (4) That the settlement of the year of 1910 does not show that Rani Haripriya had retained any land in the said Touzi and settlement in 1937 also does not support the defendant's case. Local investigation held supports the plaintiff's case. The documentary evidence i.e., amalnama (Ext.2 series). Dakhilas (Ext.1 series), Karcha Book (Ext.B/1) and the counterfoil of the Rent Receipts prove the tenancies of the respective plaintiffs and admittedly the suit land being accreted land, Regulation 4 of Bengal Alluvian and Dilivian Act, 1925 would apply and the accreted land would be deemed to be belonging to the respective tenants. (5) Section 12 of West Bengal Land Reforms Act came into effect from 01.10.1969 and it has no retrospective effect and the Hon'ble High Court in the decisions reported in AIR 1979 CAL 102 (Tara Pada Hazari vs. Revenue Officer) and 2004 (2) CLJ 363 (Kartic Chandra Mondal vs. State of West Bengal) held that if raiyat had acquired rights before 01.11.1965 such right cannot be interfered with under Section 12 and these accretions of Char lands to the plaintiff land happened long before that in the 19th Centruy after patta dated 28.12.1879 granted in favour of Nandalal (Ext.A). (6) Not a scrap of paper had been produced by the defendant No.1 appellant in the suits showing alleged settlement of Bhupen in the suit "Char Land" and the compromise decree in Title Suit No.94 of 1969 cannot bind the plaintiffs. (7) Patta (Ext.A) dated 27/28.12.1879, Total Chawk land 904 Bighas and by that patta (Ext.A) Rani Haripriya has settled 879 bighas to Nandalal Roy and balance 25 bighas were not retained by Rani Haripriya and it was kept for Bundh and 1910 settlement does not show that Haripriya had any land left in that Mouza. Panigrahis (defendant Nos. 23 to 25) admitted the plaintiffs' right in the disputed land in their written settlement and it is supported by deposition of D.W.3:- Nandalal made that Bundh and left some lands beyond that Bundh towards the river Rasulpur. (8) Dinda's Kobala dated 9.4.1944 is not binding upon the plaintiffs because that sale Deed was made long after plaintiffs' induction and as such the Dinda had not acquired any right, title and interest in the properties. (9) Till the order dated 14.01.1951 under Section 145 of Criminal Procedure Code the plaintiffs were in possession of Char land. (8) Dinda's Kobala dated 9.4.1944 is not binding upon the plaintiffs because that sale Deed was made long after plaintiffs' induction and as such the Dinda had not acquired any right, title and interest in the properties. (9) Till the order dated 14.01.1951 under Section 145 of Criminal Procedure Code the plaintiffs were in possession of Char land. Such orders are made to prevent breach of peach without deciding question of title. In fact title cannot be decided in a proceeding under Section 145 of the Code of Criminal Procedure so that order under Section 145 Cr. P.C. cannot be taken to be really a dispossession of the plaintiffs. Moreover, in such a case, the decision by the Civil Court ensures the benefit of the successful party. Following case can be referred to and relied upon. In 29 Indian Appeal page No.24 (Dinamoni Chowdhury vs. B. N. Chowdhury) and in 22 CLJ page 415 (Jhumak Kamti vs. Debulal Singh) this Hon'ble High Court held that such an order under Section 145 Cr. P.C. is not the effect of actual dispossession for an unsuccessful party against whom such order has been made. The Hon'ble Supreme Court in a case of Bhinka and others vs. Charan Singh reproted in AIR 1959 SC 960 (para 16) held under Section 145 (6) of the Code, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide title or right to possession of land of the parties but expressly reserves that question to be decided by the Civil Court in due course of law. The foundation of the Criminal Courts' jurisdiction is on apprehension of the breach of peace, and with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is conterminous with passing of the decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The privy Council in Dinamony Chowdhury vs. Brojo Mohan Chowdhury (1901) 29 Ind. App. The life of the said order is conterminous with passing of the decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The privy Council in Dinamony Chowdhury vs. Brojo Mohan Chowdhury (1901) 29 Ind. App. 24, (33) tersely stated the effect of orders under Section 145 of the Code of Criminal Procedure thus:- "These orders are merely police made to prevent breaches of the peace decide no question of title...............". The same principle has been reiterated by the Apex Court in a case Shanti Kumar Panda vs. Shakuntala Devi (2004) 1 SCC 438 (para 16) referring the aforesaid case. Moreover, in subsequent auction purchase of the interest of the defendant No.1 and taking possession by the State, the defendant No.1 cannot give back that possession to the plaintiff as held in AIR 1917 P. C. 18 (Basanta Kumar vs. Secy. of State for India and Ors.) (10) The order under Section 145 Cr. P. C. is not a permanent order and it is subject to the decision of the Civil Court. It cannot be said that the plaintiffs were out of possession because of the order under Section 145 Cr. P.C. (11) The plaintiffs' status as regards title and possession would relate back to the position as it was before passing of the order under Section 145 Cr. P. C. Law relating to West Bengal Estates Acquisition Act, 1953 which did not affect the position and possession of the plaintiffs and which could be legally protected. (12) In view of points mentioned above, there is no merit in the second appeal and there is no 'substantial question of law.' 14. LET me first take the technical objection as taken by Mr. Mallick, learned counsel for the appellant defendants regarding non-joinder of necessary party namely State of West Bengal and also non-issuance of any notice under Section 80 of the Code of Civil Procedure before adding it as a party under Order 22 Rule 10 of the Code of Civil Procedure. In this connection Mr. Mallick also refers to the remand judgment of this Court as also to a case law reported in (2010) 13 SCC page 769 (Jagtu vs. Suraj Mal and others). In this connection Mr. Mallick also refers to the remand judgment of this Court as also to a case law reported in (2010) 13 SCC page 769 (Jagtu vs. Suraj Mal and others). In the referred case the plaintiffs filed a suit seeking some declarations of certain rights over suit land admitting the factual position that the land belonged to the State of Haryana and accordingly Hon'ble Apex Court held that the suit was bad for non-joinder of the State being the necessary party. In the case in hand, respondent plaintiffs filed the suit for declaration of their title over some 'char' land due to assession of the same to their tenanted lands in terms of Regulation 4 of Bengal Alluvian and Dilluvian Act, 1825 and that they were entitled to recover possession of the same wherefrom they were illegally dispossessed by Bhupen Dinda and his men and agent who was husband of the principal defendant No.1. In view of the facts of the present case it appears that the case law as referred by Mr. Mallick is not applicable in this case. 15. IT came out that during pendency of the suit the State of West Bengal auction purchased the properties of Bhupen Dinda and as a result, the State of West Bengal was brought on record under Order 20 Rule 10 of the Code of Civil Procedure but no notice under Section 80 of the Code of Civil Procedure was given to the State. In the order of remand learned Division Bench observed as follows:- "While we agree that on the facts of this case notice under Section 80 might not be necessary, it still remains to be decided whether the declaration of title with other consequential reliefs as sought for in the plaint in both the suits as they stand, would still be available against the principal defendant No.1 to the plaintiffs in spite of the fact that she lost all her right, title and interest in the disputed tenure. In our opinion, on the facts of this case this seems to be a question of far reaching importance and should have been decided by the lower appellate Court." 16. In our opinion, on the facts of this case this seems to be a question of far reaching importance and should have been decided by the lower appellate Court." 16. AS such learned Lower Appellate Court in the impugned judgment correctly observed that there was no need to make any discussion regarding want of notice under Section 80 of the Code of Civil Procedure as Hon'ble Division Bench already held in the judgment of remand that notice under Section 80 of the Code of Civil Procedure was not necessary. I am in complete agreement with the learned Lower Appellate Court in this regard. Again when learned Division Bench already held that no notice under Section 80 of the Code of Civil Procedure was necessary in the facts and circumstances of the case, then there is hardly any scope of reopening that matter by this Single Bench. 17. THE point in issue in these suits as well as appeals were whether the suit 'char' land being accreted lands from Bagda river appertained to the respective tenancies of the plaintiffs and whether the plaintiffs were dispossessed therefrom by defendant No. 1's husband Bhupen Dinda and his men around 1950. Admittedly, these are pure questions of fact. Both the Courts came to concurrent findings of fact on these scores in favour of the plaintiffs. Admittedly, at the time of hearing of the second appeal there is hardly any scope of interfering with concurrent findings of fact of learned Courts below unless the same can be shown to be perverse being based on no evidence, or on irrelevant material. In this connection, Mr. Mallick has referred several case laws namely (2010) 12 SCC page 740 (Dinesh Kumar vs. Yusuf Ali), (2003) 4 SCC page 161 (Bondar Singh vs. Nihal Singh), AIR 2005 Supreme Court page 3079 (Phool Pata and another vs. Vishwanath Singh and others), (2009) 3 SCC page 287 (Narendra Gopal Vidyarthi vs. Rajat Vidyarthi) and (2011) 1 SCC page 158 (D. R. Rathna Murthy vs. Ramappa). All those case laws laid down the same proposition as stated above. As such no further detailed discussion of these case laws is required. 18. All those case laws laid down the same proposition as stated above. As such no further detailed discussion of these case laws is required. 18. IT appears from the impugned judgment of learned Appellate Court that learned Court below examined the patta (Ext.A) dated 13th Poush, 1286 B. S. executed by Hari Priya in favour of Nandalal, the sale deed dated 24th of June, 1917 (Ext.B) through which Nandalal sold his land to the Panigrahis (defendant Nos. 23- 25), the judgments and decrees of Title Suit Nos. 413 to 416 and 440 & 442 all of 1920 filed by the State against the Panigrahis and their tenants (Ext.6D), the report of the pleader Commissioner and map which was made part of the decree in Title Suit No.102 of 1952 (T. S. 20 of 1960), the report of Advocate Commissioner and map relating to those seven suits of 1920 (Ext.13/A and 14/A) and deed of sale (Ext.B/1) executed by Krishna Panigrahi selling his 1/3rd share in the tenancy holding to his co- sharer Kalipada and others and also Bhupen Dinda's title deed (Ext.B/2) executed by Panigrahis, to come to an unhesitating finding that the suit lands being 'char' lands were contingency to the raiyati lands belonging to the plaintiffs or their predecessors. In the process learned Court below also referred to the plaint of Bhupendra Dinda in a suit filed by him against the Government wherein he admitted the following. (i) While Nandalal has been in possession of the tenure land disputed char accreted to his tenure land. (ii) That Haripriya never used the char land as pasture; (iii) That Nandalal has settled some portion of this char land to some tenants; (iv) That the Panigrahis after purchase lands from the heirs of Nandalal continued to possess land along with char through their tenants; and (v) That the char land was in possession of the Panigrahis. Accordingly, learned Lower Appellate Court below came to a finding of fact on the basis of those old exhibited documents that the disputed land of the present two suits was really the further creation to the accreted land, which was the subject matter of said seven suits. Accordingly, learned Lower Appellate Court below came to a finding of fact on the basis of those old exhibited documents that the disputed land of the present two suits was really the further creation to the accreted land, which was the subject matter of said seven suits. It appears that learned Appellate Court has also examined the claim of the defendant No.1 regarding title over char land on the footing that her husband got settlement of the suit land from the Government by virtue of the solenama in Title Suit No.1994 of 1949. On examination of the solenama petition of said case he came to a correct finding of fact that said solenama decree did not create any new settlement of land by the Government in favour of Bhupendra Dinda. It also appears that in terms of the decision of the seven suits of 1920 the Panigrahis and their tenants continued to possess the disputed char land of the suit as intermediaries and in raiyat interest respectively and are liable to pay arrear rent to the Government since 1919. In this connection learned Lower Appellate Court further observed that the possession of the disputed char land to the extent was in existence then, got the approval of the Government at least from 1919. In this connection learned Lower Appellate Court further observed as follows:- "Thus the raiyats, who are in possession in assertion of their rayati interest in the said accreted lands against the tenure holders i.e. the Panigrahis for more than 12 years and on the other hand, the Panigrahis and their successors i.e. Bhupendra Dinda continued possession for more than 30 years as intermediary under the State. They have thereby acquired indefeasible right in their respective capacities. The said possession of the plaintiffs of the present two cases have continued through their predecessors as well as through them till 1950 when they were dispossessed i.e. for more than 30 years. At the time of the seven suits Haripriya had no right in the tenure because the concerned holding became the khas land of the State (Haripriya had only right to get malikana). On account of the decision in the seven suits the then real owner, the State, admitted the char to be the accretion to the original tenure. The State cannot now step back from the position. On account of the decision in the seven suits the then real owner, the State, admitted the char to be the accretion to the original tenure. The State cannot now step back from the position. Having overtly admitting the possession of the defendants of the suits (Plaintiffs or some predecessors of the plaintiffs of the present suit) and remained contend with the rent only, the State could not make now settlement for Mr. Dinda. The contesting defendant's only stand that her husband got new settlement of the land by virtue of solenama is untenable because of the course of events discussed above and of the specific admission made by her husband in his plaint. The plaintiffs' case that they have seen dispossessed in October, 1950 has not been disputed specifically. I am, therefore, inclined to hold that the tenures holding of Nandalal have always been treated upto the edite of the river and possession to that extent has always been exercised by his successors and that for said reason the accreted land, as it existed in 1920, was treated as an accretion to the said tenure and that the present disputed land being an accretion to the said old accretion, the raiyats, who continued to possess old accretion by virtue of the decisions of the suits of 1920 are entitled to possess the new accretion to their land i.e. the suit land of the instant two suits. They having been dispossessed in 1950 are entitled to declaration of their title and a recovery of possession. It may be mentioned here that the char land in question could not vest in the State under Section 12 of the W. B. L. R. Act because the accretion took place long before this section came into force." Regarding the aforesaid observation of learned Lower Appellate Court Mr. Mallick has submitted that in the order of learned Executive Magistrate in the proceeding under Section 145 Cr. P. C. it was held that these plaintiffs were not and Mr. Dinda was in possession of the suit land which was also confirmed by this Court. 19. THE orders under Section 145 of the Code of Civil Procedure are made to prevent breach of peace without deciding the question of title. P. C. it was held that these plaintiffs were not and Mr. Dinda was in possession of the suit land which was also confirmed by this Court. 19. THE orders under Section 145 of the Code of Civil Procedure are made to prevent breach of peace without deciding the question of title. The decision of the Criminal Court regarding possession of the respective parties in the disputed land is also tentative and subject to the determination by a competent Civil Court. The Hon'ble Apex Court in a case of Vinka and others vs. Charan Singh reported in AIR 1959 SC page 960 held that under Section 145 (6) of the Code of Criminal Procedure, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law and that the Magistrate does not purport to decide respective title or right to possession of the land of the parties and rather keeps it reserved to be decided by a competent Civil Court in due course of law. Actually the foundation of the Criminal Courts' jurisdiction under Section 144/145 of the Code of Criminal Procedure is an apprehension of the breach of peace, and with that object learned Magistrate makes a temporary order irrespective of the rights of the parties which will have to be agitated and disposed of by a competent Civil Court as per law. As such said order of Criminal Court under Section 145 of the Code of Criminal Procedure or the confirming order of this Court has little value while a competent Civil Court on the basis of evidence on record, both oral and documentary, decides the right, title and interest of the parties relating to the suit property. Accordingly, I find and hold that I do not find any infirmity not to speak of perversity in the above findings of fact of the learned Courts below that such char lands were accreted to the raiyati lands of the respective plaintiffs and or their predecessor-in-interest. 20. Accordingly, I find and hold that I do not find any infirmity not to speak of perversity in the above findings of fact of the learned Courts below that such char lands were accreted to the raiyati lands of the respective plaintiffs and or their predecessor-in-interest. 20. IT appears that learned Lower Appellate Court also dealt with the point raised by this Court in the order of remand as to the maintainability of prayer for declaration of title and other consequential reliefs against the principal defendant No.1 who had lost an interest in the disputed tenancy in view of the auction sale of the same by the State during pendency of the suit. Learned Lower Appellate Court has rightly held that if a party is dispossessed illegally from property and files a suit for declaration of title and recovery of possession and in the mean time the person who illegally dispossessed the plaintiff is replaced by any other person be it State or anybody acquiring interest of the original defendant then the plaintiff will certainly be entitled to get a decree against the successor in office of the defendant and for that purpose the suit of the plaintiff cannot fail. In this connection it is also pertinent to mention that said successor in title of defendant No.1 was none else but the State in whose presence the legal battle was fought and who took active participation by filing written statement. As such, learned Lower Appellate Court has rightly dealt with the other issue as referred by learned Division Bench of this Court at the time of passing the order of remand. 21. LEARNED Lower Appellate Court also dealt with the last issue as framed by this Court in the order of remand namely consequences of deeming the raiyats as intermediaries. Learned Lower Appellate Court held that raiyats while being treated as intermediaries for the purpose of retention of the land under the West Bengal Estate Acquisition Act, must be in khas possession of the concerned land to be competent to retain the same. Learned Lower Appellate Court held that raiyats while being treated as intermediaries for the purpose of retention of the land under the West Bengal Estate Acquisition Act, must be in khas possession of the concerned land to be competent to retain the same. It was further held that if a person for no fault on his part was dispossessed from his lands long before the date of vesting and also filed suits for recovery of the same then on recovery of the same he will certainly have the right to file further B-form for retention of the land as per law. It was further held that and rightly held that if there was any question exceeding the ceiling of the retainable land it will be decided by the competent authority in the appropriate forum as to which lands would be permitted to be retained and in what manner. I find that the learned Lower Appellate Court has dealt with all three issues framed by learned Division Bench of this High Court in the remand order. 22. I am of opinion that the concurrent findings of fact of the learned Courts below were based on evidence, both oral and documentary, adduced by the parties. As such, said concurrent findings of fact cannot be said to be perverse. Even if there is scope for coming to a different finding by examining the evidence on record from a different angle still the High Court in the second appeal should not substitute its findings with that of learned Courts below so long said finding of fact is not found to be perverse. As a result, both the appeals are rejected on contest. However, I pass no order as to costs. Send down Lower Court record along with a copy of this judgment to the Lower Court. 23. URGENT Photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.