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2016 DIGILAW 34 (TRI)

Haridhan Roy v. Bhanu Bala Sarkar

2016-02-09

S.C.DAS

body2016
JUDGMENT : This second appeal has been admitted for hearing on the following substantial question of law : “(i) Whether the legal heirs of an under riayat can claim partition in respect of the property of an under raiyat? (ii) Whether the legal heirs of an under riayat can claim title with regard to the property in respect of which raiyati Khatian has been issued in favour of some of the legal heirs of the under raiyat on the basis of their possession?” 2. Heard learned senior counsel, Mr. S. M. Chakraborty, assisted by learned counsel, Ms. D. Das for the defendant appellants and learned counsel, Mr. D. K. Das Choudhury for the plaintiff respondent Nos.1 and 2. No representation on behalf of other respondents. 3. For the purpose of deciding the substantial questions of law, formulated in this second appeal, let me first give a short outline of the material fact pleaded by both side and evidence adduced in support thereof. Late Bharat Chandra Roy died intestate leaving behind defendant No.1 as his wife and the plaintiffs and defendant Nos.2 to 7 as his daughters and sons. He left behind landed properties described in the schedule of the plaint, measuring 8.36 acres. The plaintiffs being the daughters of Bharat Chandra Roy claimed 1/9th share each in the suit land. It is contended by the plaintiffs that they repeatedly claimed their share in the suit land, but the defendant Nos.1,2 and 3 refused their claim and hence, they instituted the suit, interalia, seeking declaration of their Jote right to the extent of 1/9th share each in the suit land and for passing preliminary decree as well as final decree. 4. The defendant Nos.1, 2 and 3 contested the suit by filing written statement contending that Bharat Chandra Roy was a korfadar and after the death of Bharat Chandra Roy, defendant Nos.1, 2 and 3 have been possessing the suit land and so, the competent authority suomotuissued certificate under Section 130 of the Tripura Land Revenue and Land Reforms Act, 1960 (for short ‘TLR & LR Act’) in the names of the said defendants and so, they have become the underraiyat of the suit land and there is no question of partition of that part of the suit land. Other defendants did not contest the suit. 5. Other defendants did not contest the suit. 5. The trial Court framed three issues, namely, : “(i) Is the suit land joint property of the parties to the suit? (ii) What should be the quantum of share of the each and every party to the suit? (iii) To what reliefs are the parties entitled?” 6. The plaintiffs and defendant Nos.1, 2 and 3 adduced oral and documentary evidence. Considering the pleadings and evidence, the trial Court decreed the suit and directed the parties to make amicable partition of the suit land within three months in terms of the decree. The defendant preferred Title Appeal No.15 of 2009 in the Court of District Judge, South Tripura, Udaipur and the learned District Judge by judgment dated 04.04.2011 dismissed the appeal and hence, this second appeal. 7. Learned senior counsel, Mr. S.M. Chakraborty appearing for the defendant appellants submitted that the part of the suit land covered under Khatian No.290 (Exbt.1) was a Jote land in the name of Bharat Chandra Roy and, therefore, the defendants have no objection in respect of partition of that part of the land. The defendants objected partition of the land covered under Khatians marked Exbt.2 and 3 since the land covered under those Khatians were korfa land recorded in the name of Bharat Chandra Roy and after the death of Bharat Chandra Roy the defendant Nos.1, 2 and 3 had been in possession of the korfa land and were producing crops exercising korfa right and the other legal heirs of Bharat Chandra Roy may be entitled to a share of the crops, but cannot claim partition of the korfa land since the korfa right cannot be partitioned. Admittedly, raiyat was somebody else, who was the original owner of the land and only korfa right was recorded in the name of Bharat Chandra Roy. After the death of Bharat Chandra Roy the competent authority suo motu took action under Section 130 of the TLR & LR Act and in respect of korfa land a raiyati Khatian has already been issued in the names of defendant Nos.1, 2 and 3, which has been marked as Exbt.A. Since defendant Nos.1, 2 and 3 have become raiyat of the suit land by operation of law, the plaintiffs and other legal heirs of Bharat Chandra Roy cannot claim partition of that land. 8. On the contrary, learned counsel, Mr. 8. On the contrary, learned counsel, Mr. Das Choudhury submitted that a korfa right is an inheritable right as prescribed in Section 108(1) of the TLR & LR Act and since it is an inheritable right, the plaintiff respondents being daughters of Bharat Chandra Roy were entitled to get 1/9th share each to the land occupied by Bharat Chandra Roy as korfadar. He has also submitted that there is nothing to show that defendant Nos.1, 2 and 3 paid any compensation for recording the korfa land in their names and no certificate was also issued by the competent authority, whereas simply a Khatian was opened in the names of those defendants and thereby defendant Nos.1, 2 and 3 not acquired any right, title and interest of a raiyat in the suit land. 9. It is an admitted position that the land covered under Exbt.2 and 3, khatians, were recorded in the name of Bharat Chandra Roy as a korfadar. A ‘korfadar’ means an underraiyat. The word ‘under raiyat’ has been defined in Section 2(v) of the TLR & LR Act, which reads as follows : “(v) ‘under raiyat’ means a person who cultivates or holds the land of a raiyat under an agreement, express of implied, on condition of paying therefore rent in cash or in kind or delivering a share of the produce and includes[a bargadar].” 10. Section 108 of the TLR & LR Act prescribes that the interest of an under raiyat in any land shall be inheritable, but not transferable. Section 108 reads as follows: “108.(1) The interest of an under raiyat in any land held by him as such shall be heritable but, save as otherwise provided in this Act, shall not be transferable. (2) No under raiyat shall be evicted from his land except as provided in this Act.” 11. It is an admitted position that Bharat Chandra Roy, the predecessor of the plaintiffs and defendant Nos.1 to 7, was an under raiyat in respect of the suit land recorded in Khatians, marked as Exbt.2 and 3. So, the right of Bharat Chandra Roy was inheritable to all his legal heirs including the plaintiffs. It is an admitted position that Bharat Chandra Roy, the predecessor of the plaintiffs and defendant Nos.1 to 7, was an under raiyat in respect of the suit land recorded in Khatians, marked as Exbt.2 and 3. So, the right of Bharat Chandra Roy was inheritable to all his legal heirs including the plaintiffs. Defendant Nos.1, 2 and 3 claimed that after the death of Bharat Chandra Roy, they were possessing the suit land and stepped to the shoes of Bharat Chandra Roy as under raiyat and the competent authority suo motude clared them as raiyat under Section 130 of the TLR & LR Act and Khatian, marked as Exbt.A, was created in the names of defendant Nos.1, 2 and 3. Section 130 reads as follows : “130. When the compensation or the first installment of the compensation, as the case may be, has been paid by the under raiyat, the competent authority may suo motu and shall, on application made to it in this behalf, issue to the under raiyat a certificate in the prescribed form declaring him to be the owner of the land specified therein.” 12. A reading of this provision makes it abundantly clear that in the event of payment of compensation or payment of first installment of compensation, the competent authority suo motu and shall on the application made in that behalf, issue the under raiyat a certificate in prescribed form declaring him to be the owner of the land. The defendant Nos.1, 2 and 3, i.e, appellants, failed to show any certificate issued by the competent authority in their names. A Khatian is a revenue record but a certificate issued by the competent authority is a document of ownership as a raiyat in respect of the korfa land. In the absence of production of any such certificate or any evidence to that effect, a mere Khatian, i.e., Exbt.A, does not affirm that the defendants became raiyat of the suit land. No doubt recording of that Khatian was not challenged before a revenue forum. 13. Learned senior counsel, Mr. Chakraborty submitted that the competent authority recorded the korfa land as a raiyati land in the names of the defendants and it is to be presumed that a certificate has been issued, consequent to which a Khatian has been prepared. I cannot agree with the submission of learned senior counsel, Mr. Chakraborty. 13. Learned senior counsel, Mr. Chakraborty submitted that the competent authority recorded the korfa land as a raiyati land in the names of the defendants and it is to be presumed that a certificate has been issued, consequent to which a Khatian has been prepared. I cannot agree with the submission of learned senior counsel, Mr. Chakraborty. In my considered opinion, a certificate under Section 130 of the TLR & LR Act will confer the right and the khatian will be a consequence of that conferment of right. Unless there was a certificate issued under Section 130 after compliance of the requirement as contained in Section 130, there was no reason to create a Khatian in the name of some of the legal heirs of the original korfadar. Further, it was argued by learned senior counsel, Mr. Chakraborty that the plaintiffs did not challenge the creation of that Khatian and so, in the partition suit their right cannot be declared since there is a bar under the TLR & LR Act that an action of a revenue authority under the TLR & LR Act cannot be challenged in a civil suit. 14. Learned senior counsel, Mr. Chakraborty referred Section 44(2) of the TLR & LR Act and submitted that the Khatian cannot be challenged. Section 44(2) reads as follows: “44(2) No civil court shall entertain any suit or application concerning any land if it relates to alteration of any entry in the record of right finally published, revised corrected or modified under any of the provisions of this Chapter or Chapter VIII of this Act consequent upon the notification issued under Section 26 after the enforcement of the Tripura Land revenue and Land reforms(Fifth Amendment) Act, 1979.” 15. In the present case Exbt.A is a Khatian created in the names of defendant Nos.1, 2 and 3 conferring raiyati right in respect of korfa land, which was supposed to be created pursuant to a certificate issued by the competent authority. Section 44(2) relates to alteration of entry in the record of right finally published, but here the case is otherwise. It is creation of a Khatian in the name of particular legal heirs of a korfadar, excluding the rights of other legal heirs of the same kor fadar. So, subsection (2) of Section 44 cannot protect the defendants in respect of the khatian prepared in their names. 16. It is creation of a Khatian in the name of particular legal heirs of a korfadar, excluding the rights of other legal heirs of the same kor fadar. So, subsection (2) of Section 44 cannot protect the defendants in respect of the khatian prepared in their names. 16. Section 188 of the TLR & LR Act reads as follows : “188. No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act. Provided that if in a dispute between parties a question of title is involved, a civil suit may be brought for the adjudication of such question.” 17. The above provision bars a civil suit provided the dispute between the parties is not on the question of title. Here the question involved between the plaintiffs and defendants in respect of their right/title to the extent as a kor fadar, which the plaintiffs also inherited on the death of their father. So, the plaintiffs in the partition suit itself claimed their right and sought declaration, which the trial Court allowed and the appellate Court affirmed. I find nothing wrong in the judgment passed by the trial Court and affirmed by the trial Court. 18. The right of an under raiyat, since inheritable, all the legal heirs of under raiyat were entitled to the share of an under raiyat. The Khatian (Exbt.A) created in the names of defendant Nos.1, 2 and 3 in exclusion of the plaintiffs and other legal heirs of Bharat Chandra Roy, in the absence of a certificate issued under Section 130 of TLR & LR Act cannot abolish the right of the plaintiffs and other legal heirs of original korfadar, Bharat Chandra Roy. The rights of the korfadar since inheritable, the plaintiffs were entitled to get 1/9th share each to the land left by Bharat Chandra Roy as korfadar. 19. The appeal is, therefore, found to be devoid of any merit and hence, stands dismissed. 20. Send back the lower court records along with a copy of this judgment.