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2016 DIGILAW 630 (CAL)

Netai Chandra Das v. Jhantu Panja

2016-08-10

SAHIDULLAH MUNSHI

body2016
1. This revisional application is directed against Order No. 12 dated 1st June, 2010 passed by the learned Civil Judge (Junior Division), Second Court at Chandernagore, District Hooghly in Title Suit No. 6 of 2010. 2. The defendant no.2, Netai Chandra Das, is the petitioner in the present revisional application. The opposite party filed a suit for declaration and injunction before the learned Civil Judge (Junior Division), Second Court at Chandernagore, District Hooghly which was registered as Title Suit No. 6 of 2010. In the said suit the plaintiffs made the following prayers : “(a) That the plaintiffs are the 16 annas owners of the demarcated A Schedule property and the defendants have got no right, title, interest and possession therein. (b) For a decree of further declaration that the defendants are the 16 annas owners of the demarcated B Schedule property and they have got no right, title interest beyond their purchased property. (c) For a order of permanent injunction restraining the defendants from interfering with the peaceful possession of the Pltfs. In the A Schedule property and from making any attempt to harvest the crops cultivated by the pltfs. (d) For cost of the suit. (e) For any other relief/reliefs to which the plaintiffs are entitled to under the law and in equity.” 3. The prayers so made by the petitioners are in respect of demarcated 20 decimals suna property in the southern portion of L.R. Plot No. 1179, L.R. Khatian Nos. 1146 and 1147 under Mouza Baburbheri, P.S. Singur, District Hooghly. The defendant nos. 1 and 2 have filed a combined written statement wherein it has been stated that the defendant no.1 is the joint owner of 8 decimal of the suit plot and the defendant no.2 is the bonafide bargadar of the suit property and that the defendant has every right to cultivate the suit property. 4. The defendant nos. 1 and 2 have filed a combined written statement wherein it has been stated that the defendant no.1 is the joint owner of 8 decimal of the suit plot and the defendant no.2 is the bonafide bargadar of the suit property and that the defendant has every right to cultivate the suit property. 4. In the Court below the defendant no.2 filed an application under Section 21(3) of the West Bengal Land Reforms Act, 1955 and raised an objection that since he is a bargadar in respect of the suit property and miscellaneous proceeding is pending before the B.L.& L.R.O. for decision as to whether he is a bargadar in respect of the land in question, the learned Court ought to have referred the matter before the authority under Section 18(1) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the ‘Act’). The provision of Section 21 prescribes a bar of jurisdiction and it says : “21. Bar of jurisdiction.- (1)[***] No order or other proceedings whatsoever under this Chapter shall be questioned in any Civil Court and no Civil Court shall entertain any suit or proceeding in respect of any matter mentioned in [sections 17, 18, 19B and 20B]. (2) On the appointment of officer or authorities under this Chapter all proceedings pending before any Bhagchas Conciliation Board established under the West Bengal Bargadars Act, 1950, shall stand transferred to the officer or authority have jurisdiction over the area in which the land, to which the proceedings ralate, is situated. (2) On the appointment of officer or authorities under this Chapter all proceedings pending before any Bhagchas Conciliation Board established under the West Bengal Bargadars Act, 1950, shall stand transferred to the officer or authority have jurisdiction over the area in which the land, to which the proceedings ralate, is situated. (3) If any question as to whether a person is or is not a bargadar arised in the course of any [suit, case, appeal or other] proceedings before any Civil or Criminal court, the Court shall refer it to the officer or authority mentioned in sub-section (1) of section 18 [for decision and such Court shall dispose of the suit, case, appeal or other proceedings] in accordance with the decision communicated to it by the officer or authority mentioned in sub-section (1) of section 18 to whom the question was referred.] (4) On a reference being made under sub-section (3) of this section to the officer or authority mentioned in sub-section (1) of section 18 or decision, such officer or authority shall personally made such enquiry as may be prescribed, shall arrive at a decision after giving all the parties to the suit, case, appeal or other proceedings an opportunity of being heard and shall communicate his or its decision in the prescribed manner to the Court which made the reference. After communication of his or its decision to the referring Court such decision shall not be altered or revised except in an appeal under section 19.]” 5. On a perusal of sub-section (3) it appears that if any question as to whether a person is or is not a bargadar arises in the course of any proceedings before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in sub-section (1) of section 18 for decision and such Court shall dispose of the suit, case, appeal or other proceedings after the decision communicated to it by the officer or authority mentioned in sub-section (1) of section 18 to whom the question was referred. 6. 6. In support of the submissions made by the defendant no.2 he has relied upon a Record of Rights which, however, does not show that he is a bargadar in respect of the suit land but he submits that miscellaneous proceeding is pending before the concerned authority for a decision as to whether he is a bargadar in respect of suit plot or not and the same is not disputed by the plaintiff. From a plain reading of Section 21(3) of the said Act it appears that it will be an obligation of the Court to refer the matter before the competent authority for appropriate decision with regard to the status of the alleged bargadar that is to say whether such person is really a bargadar or not is to be decided by the authority concerned under Section 18(1) of the said Act. That being the legal position this Court is of the view that the learned Court below has committed an error in not referring the matter before the competent authority under Section 18(1) of the said Act. 7. Considering the submissions made on behalf of the parties and on perusal of the provisions of the West Bengal Land Reforms Act, I direct the learned Court below to refer the dispute before the authority under Section 18(1) of the said Act and in the event the same is referred to the said authority the authority will dispose of the question as to whether the defendant no.2 is a bargadar or not within a fortnight from the date of receipt of a copy of this order. The order impugned contains another part by which an injunction application filed by the plaintiff has also been disposed of by affirming its earlier Order No.3 dated 12th January, 2010. The defendants were directed to maintain status quo as regard possession, cultivation and harvesting of the “A” Schedule property. Since the Court below has passed an order of injunction in the form of status quo the same will not in any manner prejudice the defendant no.2 even during the pendency of the reference before the competent authority under Section 18(1) of the said Act. 8. Mr. Amitava Pain, learned Counsel appearing for the petitioner has relied upon a judgment of a Division Bench of this Court in the case of Haradhan Chongdar Vs. 8. Mr. Amitava Pain, learned Counsel appearing for the petitioner has relied upon a judgment of a Division Bench of this Court in the case of Haradhan Chongdar Vs. Jitendranath Hambir reported in 85 C.W.N. 21 where similar question came up for decision of the Hon’ble Court and this Hon’ble Court decided that jurisdiction of the Civil Court is not ousted merely because a disputed question as to the status of a defendant who claims to be a bargadar is referred to the prescribed authority under Section 21(3) of the West Bengal Land Reforms Act, 1955. The Court has also held that even where such a reference is made the court remains in seisin of the suit and the Court would have jurisdiction to pass an order of temporary injunction. 9. Having heard the parties and after perusal of the Order impugned I hold that order of status quo as passed by the learned Court below may continue even during pendency of the reference of the case before the prescribed authority under Section 18(1) of the Act. After the reference is decided by the said authority the defendant no.2, if feels prejudiced by the present order of status quo may file an application for variation of the same. 10. The impugned order is set aside so far as it relates to the consideration about the application under Section 21(3) of the West Bengal Land Reforms Act and is affirmed so far as the order of temporary injunction. The revisional application is partly allowed. 11. There will be no order as to costs. 12. Urgent certified copy of this order, if applied for, be supplied to the learned Advocates appearing for the parties subject to compliance with all requisite formalities.