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2017 DIGILAW 839 (CAL)

Sk. Abdul Kasem v. Awa Rani Mondal

2017-11-02

MIR DARA SHEKO

body2017
JUDGMENT : MIR DARA SHEKO, J. 1. Though none appears on behalf of the opposite parties and virtually taking note of the service report as 'unclaimed' in respect of the opposite parties No. 1 and 3 and non-receipt of AD card, despite sending of the process upon all the opposite parties, including proforma opposite parties, considering the very nature of the lis in the matter service of notice upon all others is dispensed with and the matter is taken up for consideration and disposal on merits at the instance of learned advocate for the petitioner-defendant No. 1 who has assailed a part of the order dated February 11, 2016 by which the prayer of the petitioner under Section 21(3) of the West Bengal Land Reforms Act, 1955 was declined. Copy of plaint, though was not annexed, as filed during hearing be taken on record. 2. It reveals that the principal opposite parties-plaintiffs filed the suit claiming themselves as recorded bargadars by delivering bhag produce to Sk. Anwar Ali, the defendant No. 2 in the suit. Cause of action has been set out alleging that the petitioner was trying to disturb peaceful possession of the principal opposite parties. 3. Mr. Roy Chowdhury appearing for the petitioner apprised of the Court that so far as the order of interim temporary injunction as granted by learned trial Court is concerned, he has nothing to submit; but, according to him, since the right of bargardar-ship of the principal opposite parties was disputed and therefore one application to refer the matter before concerned BL & LRO was filed and since adjudication of such dispute was beyond jurisdiction of the civil Court, the order of learned trial Court bearing rejection of the application under Section 21(3) of the West Bengal Land Reforms Act, 1955 is perverse and is liable to be set aside. 4. Taking note of the text of the pleadings it reveals that when the petitioner disputed the right of bargadarship of the principal opposite parties-plaintiffs over the suit property, learned trial Court should not act upon the alleged admission of defendant No. 2. 4. Taking note of the text of the pleadings it reveals that when the petitioner disputed the right of bargadarship of the principal opposite parties-plaintiffs over the suit property, learned trial Court should not act upon the alleged admission of defendant No. 2. Of course, the names of the principal opposite parties were appearing in the record of right as recorded bargadar, but the principal opposite parties being the plaintiffs have filed the suit in advance to protect their alleged right in the suit property, as bargadarship, which, in effect, cannot be declared by a civil Court, if it is in dispute, unless decisive report is called for and available from the concerned authority. 5. Therefore, when that right of bargadarship was under challenge in the suit initiated by the principal opposite parties and when the application was filed by the petitioner-defendant No. 1 to refer the matter before the concerned BL & LRO seeking report, the statutory opportunity ought to have been availed of by the learned trial Court, instead of rejecting the same, specially when the civil Court virtually is not vested with the jurisdiction to determine such a lis. 6. Hence learned trial Court is directed to record a formal order allowing the application under Section 21(3) of the 1955 Act lying already on record at the instance of the petitioner-defendant No. 1 and to monitor so that the report may be available on record from the concerned BL & LRO within a reasonable period, not exceeding eight months from date of communication of this order, so that the trial of the suit can be expedited thereafter, and pending such report the suit shall be kept in abeyance. 7. With the above observations, Order No. 24 dated February 11, 2016 passed by learned trial Court is modified to that extent and the CO stands allowed. No order as to costs. 8. The department is directed to communicate a copy of this order to learned trial Court for information and compliance. Certified photostat copy of this order, if applied for, shall be given to the parties.