Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 705 (CAL)

Anil Patra v. Srimatya Angurbala Pramanik

2017-08-22

JYOTIRMAY BHATTACHARYA, SHIVAKANT PRASAD

body2017
JUDGMENT : JYOTIRMAY BHATTACHARYA, J. 1. This second appeal is directed against the judgment and decree dated 19th April, 2017 passed by the learned Civil Judge (Senior Division), 1st Court at Contai in Title Appeal No. 17 of 2012 affirming the judgment and decree dated 22nd December, 2011 passed by the learned Civil Judge (Junior Division), 1st Additional Court at Contai in Title Suit No. 6 of 2010 at the instance of the plaintiff/appellant. 2. Let us now consider as to whether any substantial question of law is involved in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not. 3. On perusal of the materials on record, we find that the plaintiff filed a suit for declaration of his right, title and interest in respect of the suit property and for injunction. He claimed that suit land, which was the vested land, was settled with the plaintiff by the State Government by grant of a Patta. Thus, on the strength of the said patta, granted by the State Government, the plaintiff is claiming title over the suit property. The plaintiff further claims that possession was given to the plaintiff by the State Government while granting Patta in his favour and since then, the plaintiff has been possessing the suit property and as such he has prayed for a decree for permanent injunction for restraining the defendants from interfering with the possession of the plaintiff. 4. The defendants contested the said suit by filing written statement denying the material allegations made out by the plaintiff in the plaint. The defendants are claiming their title through successive transfers from one Nilmoni Kabi. It was also stated therein that earlier a suit was filed by Kanailal Pramanik who was the husband of the present defendant no.1 and father of the present defendant nos. 2, 3 and 4 against the State of West Bengal as his title in the suit property was questioned by the State of West Bengal which treated the land of the said Nilmoni Kabi as vested under the Estates Acquisition Act. 5. 2, 3 and 4 against the State of West Bengal as his title in the suit property was questioned by the State of West Bengal which treated the land of the said Nilmoni Kabi as vested under the Estates Acquisition Act. 5. In the said suit, the State Government took up its defence that the said Nilmoni Kabi was a big raiyat and his lands were vested in the State in a big raiyat proceeding and as such, the present defendants who were the legal heirs of the plaintiff in the earlier suit could not succeed in establishing their title in the suit property by way of successive transfer from the said Nilmoni Kabi and/or his transferees. 6. Though in the said suit no specific issue was framed as to whether the said Nilmoni Kabi was a big raiyat or not and further as to whether his land was vested in the big raiyat proceeding or not, the parties participated in the trial by knowing fully well the involvement of the said issue as to whether Nilmoni Kabi was a big raiyat or not in the said suit and the court after considering the respective pleadings of the parties and their evidence came to a definite conclusion that the State Government has failed to produce the records relating to the vesting of the land in the hands of the said Nilmoni Kabi. 7. The learned Trial Court also came to a positive finding that the said Nilmoni Kabi was not a big raiyat. However, since the defendant who was the plaintiff in the earlier suit could not establish his title otherwise in the suit property, the learned Trial Court dismissed the plaintiff's suit. 8. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Court, the plaintiff therein filed an appeal before the learned First Appellate Court. 9. The learned first Appellate Court affirmed the said findings of the learned Trial Court. While dismissing the said appeal, the learned first Appellate Court also affirmed the findings of the learned Trial Court to the effect that Nilmoni Kabi was not a big raiyat. 10. No further appeal was taken out by any of the parties against the said judgment and decree passed by the learned First Appellate Court. While dismissing the said appeal, the learned first Appellate Court also affirmed the findings of the learned Trial Court to the effect that Nilmoni Kabi was not a big raiyat. 10. No further appeal was taken out by any of the parties against the said judgment and decree passed by the learned First Appellate Court. As such, the parties are bound by the findings arrived at by the learned First Appellate Court in the said appeal. 11. Taking into consideration the impact of the said decrees passed by the learned Trial Court as well as the learned first Appellate Court in the earlier suit and the appeal arising therefrom, the learned Trial Court held that the plaintiffs' present claim for title in respect of the suit property which they claimed to have acquired by way of Patta granted by the State Government is barred by the principle of res-judicata as in the earlier suit it was held that Nilmoni Kabi was neither a big raiyat nor his land which was the subject matter in the earlier suit stood vested. The plaintiff's suit thus failed. 12. The learned First Appellate Court also affirmed the said findings of the learned Trial Court and held that the plaintiff's claim is barred by res judicata. Thus, the first appeal was also dismissed. 13. The legality and/or propriety of the said judgment and decree of the learned First Appellate Court is under challenge in this second appeal at the instance of the plaintiff/appellant. 14. Mr. Bhattacharya, learned senior counsel, appearing for the appellant submits that both the courts below erred in holding that the plaintiff's claim for title in respect of the suit property is barred by res-judicata on the following three-fold grounds :- (i) The suit property which is the subject matter of the present suit was not the suit property in the earlier suit. As such, the decision which was taken in the earlier suit cannot operate as res judicata in respect of the plaintiff's claim for title in respect of the suit property which is identically different from the suit property which was involved in the earlier suit. As such, the decision which was taken in the earlier suit cannot operate as res judicata in respect of the plaintiff's claim for title in respect of the suit property which is identically different from the suit property which was involved in the earlier suit. (ii) The issue relating to vesting was not directly and/or substantially involved in the earlier suit and no issue having been framed in the said suit, the decision on such dispute cannot operate as res judicata on the subsequent claim of the plaintiff in the instant suit. (iii) The civil court being incompetent to assess the correctness of the order of vesting in view of Section 57B of the Estates Acquisition Act, the decision of the civil court on such an issue cannot operate as res judicata on the subsequent issue which is involved in the present suit. 15. These are three grounds, which were developed by Mr. Bhattacharya in support of his submission that the learned courts below erred in coming to the aforesaid conclusion which is under challenge in this second appeal. 16. Let us now consider as to how far such contention of Mr. Bhattacharya can be accepted in the facts of the instant case. 17. On perusal of the judgment and decree passed in the earlier suit, though we find that no particular issue was framed with regard to the vesting of the property of Nilmoni Kabi, but the parties participated in the trial of the said suit by knowing fully well the respective claims of the parties. The State Government took a positive defence in the said suit that Nilmoni Kabi was a big raiyat and his land was vested in the State under the Estates Acquisition Act. Though such a definite stand was taken by the State Government in support of its title in the suit property, but the State Government could not produce any record relating to vesting of the land in the hands of Nilmoni Kabi. 18. Under such circumstances, the learned Trial Court held in the earlier suit that the State Government was unable to substantiate its claim that Nilmoni Kabi was a big raiyat and the property which was the subject matter in the said suit did not vest with the State. The said finding of the learned Trial Court was affirmed in the appeal. 19. The said finding of the learned Trial Court was affirmed in the appeal. 19. Though it is true that the suit property which is involved in the present suit is not identical with the suit property which was involved in the earlier suit but fact remains that if the findings of the courts below in the earlier suit that Nilmoni Kabi was not a big raiyat, attained its finality, then it goes without saying that no part of the land belonging to Nilmoni Kabi could have vested with the State under the West Bengal Estates Acquisition Act, 1953 as he was not a big raiyat and he was not holding land in excess of the ceiling limit on the date of vesting. If this part of the findings attained its finality, then even if the suit property which is involved in the present suit was not involved in the earlier suit still then, in our considered view, no part of the property belonging the said Nilmoni Kabi could have vested in the State if Nilmoni Kabi is found to be not a big raiyat. Thus, we hold that the principle of res judicata will apply as no one can be vexed twice on the same issue. 20. In the earlier suit, the State Government failed to establish its title. As such, the plaintiff in the present suit who is claiming title through the State Government on the strength of the Patta given by the State Government cannot establish his claim for title in the suit property. 21. With regard to the other part of the submission of Mr. Bhattacharya that the civil court is not competent to assess the correctness of the order of vesting in view of the bar created under Section 57B of the West Bengal Estates Acquisition Act, 1953, we have no quarrel with this submission of Mr. Bhattacharya as it is well settled that the correctness of the order of vesting under the West Bengal Estates Acquisition Act, 1953 cannot be challenged before the civil court, but the civil court's jurisdiction to decide the dispute relating to the title of the plaintiff and for permanent injunction is not barred under Section 57B of the West Bengal Estates Acquisition Act, 1953. In this regard we may rely upon the following decisions of this Hon'ble Court :- (i) In the case of Vishnu Pada Khatua v. State of West Bengal reported in 89 CWN 169 ; (ii) In the case of Chaturbhuj Mishra v. State of West Bengal reported in 82 CWN 589 ; (iii) In the case of Jharna Ghosal v. Satyendra Prasad Dhar reported in 1977 (82) CWN 335. 22. In all those decisions, it was uniformly held by this Hon'ble Court that while deciding the dispute regarding title over the suit property, the Court can incidentally consider as to whether the land was vested with the State or not and/or the correctness of the entries in the record of rights. 23. In the present case, we find that the correctness of the order of vesting was not challenged before the civil court even in the earlier suit. The issue which was involved in the earlier suit was as to whether Nilmoni Kabi was a big raiyat or not and further as to whether his land was vested in any big raiyat's proceeding or not. Since the State Government failed to produce any record relating to the vesting of any land of Nilmoni Kabi in the earlier suit, the learned Trial Court as well as the learned Appeal Court held that the State Government has failed to establish its claim that the land was vested with the State and Nilmoni Kabi was a big raiyat. Such findings of fact having been attained its finality in the earlier suit and/or the appeal arising therefrom, we are of the view that such findings of fact arrived at by the civil court in the earlier suit operates as res judicata on the issue involved in the present suit relating to the title of the plaintiff/appellant who is claiming title over the suit property through the State Government on the strength of the Patta issued by the State Government. We, thus, cannot agree with the submission of Mr. Bhattacharya that the learned courts below erred in dismissing the suit and/or the appeal filed by the plaintiff on the ground of res judicata. 24. We, thus, cannot agree with the submission of Mr. Bhattacharya that the learned courts below erred in dismissing the suit and/or the appeal filed by the plaintiff on the ground of res judicata. 24. Before parting with, we like to mention here that though the Patta and the big raiyat's proceeding relating to Nilmoni Kabi were produced by the plaintiffs in the present suit, but nothing has been produced by the plaintiffs to show that even after the vesting order was passed, possession of the vested land was taken by the State Government under Section 10(2) of the West Bengal Estates Acquisition Act, 1953 before settling the land with the plaintiff. 25. Even assuming that the vesting order was passed by the concerned authority under the West Bengal Estates Acquisition Act, 1953 and the learned Trial Court came to a wrong conclusion in the earlier suit, still then we are of the view that the said conclusion arrived at by the learned Trial Court as well as the learned Appeal Court in the earlier suit and/or the appeal arising therefrom operates as res judicata on the court's jurisdiction to decide the issue which is involved in the present suit as even an erroneous findings of the court in the earlier proceeding operates as res judicata on the issue involved in the subsequent proceeding either directly or substantially as no one can be vexed on the same issue twice. 26. We, thus, hold that no substantial question of law is involved in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed. 27. Since we have not admitted the appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for injunction. The said application being CAN 6794 of 2017 is, thus, deemed to be disposed of. Appeal dismissed.