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2019 DIGILAW 917 (CAL)

Pradip Mondal v. Sadhana Mondal

2019-11-07

SUVRA GHOSH

body2019
JUDGMENT : 1. The application under Article 227 of the Constitution of India pertains to order no. 50 dated 13th June, 2018 passed by the Learned Civil Judge (Junior Division) at Haldia in Title Suit No. 257 of 2014. 2. The plaintiffs/opposite parties filed the suit against the defendants/petitioners praying for a decree of declaration and permanent injunction on the ground that the disputed property was originally owned and occupied by the predecessor of the parties Chinta Haran Mondal, since deceased, who executed a deed/"Nirupan Patra" on 26-12-1954 in favour of his sons Bhagwan Mondal and Shambhu Mondal, the petitioners being the legal heirs of Bhagwan Mondal and the opposite parties the legal heirs of Shambhu Mondal. The defendants/petitioners subsequently disclosed a deed/"Nirupan Patra" executed by the original owner on 02-02-1966 in favour of his two sons whereby a portion of the "ka" schedule property of the previous deed was settled in favour of the petitioners. The plaintiffs/opposite parties mutated their names in the record of rights in respect of the disputed property and have been occupying the same. The petitioners attempted to raise a boundary wall in a portion of the disputed property (dag no. 1344) for which the plaintiffs/opposite parties filed the suit praying for declaration of their title in respect of the property and an order of permanent injunction against the defendants/petitioners restraining them from creating any disturbance in their peaceful possession of the property. 3. The defendants/petitioners challenged the maintainability of the suit on several counts and prayed for dismissal of the suit. Such prayer of the defendants/petitioners was turned down by the learned trial court by the order impugned. 4. Assailing the said order, learned advocate for the petitioners submitted that the plaint did not disclose any cause of action and ought to have been rejected on such score under Order VII Rule 11(a) of the Code of Civil Procedure. According to learned advocate, the deed dated 26-12-1954 is barred under the provision of Section 5A of the West Bengal Estates Acquisition Act, 1953 as the deed was executed within the restricted period between 05-05-1953 and 14-04-1955 and as such, the said deed did not confer any right, title or interest upon the parties. Also, in the said deed, the property in khatian no. Also, in the said deed, the property in khatian no. 10 was described as transferred land which was subsequently vested to the State under the provision of the West Bengal Estates Acquisition Act, 1953 despite the fact that the property was retained under Section 6 of the Act of 1953 by the original owner Chinta Haran Mondal and his name was recorded in khanda khatian No. 10/6 in respect of the retained land. The deed was therefore not acted upon and ought to be treated as cancelled. Learned advocate has also challenged the maintainability of the suit on the ground of limitation, stating, inter-alia, that the plaintiffs/opposite parties were aware of the deed of 1966 when they filed the appeal before the Tenancy Tribunal. The suit was filed in 2014 and is therefore barred by limitation. 5. The record of rights was prepared on the basis of the deed of 1966 and the plaintiffs/opposite parties also purchased and sold some property relying upon the said deed and as such, they are debarred from challenging the legality of the deed in the suit. The record of rights also remained unchallenged. 6. Further, the suit is also barred by the principles of Res Judicata as the dispute between the parties was finally settled in the mutation case before the Tenancy Tribunal. 7. The contention of learned advocate for the opposite parties, in brief, is that the original owner Chinta Haran Mondal executed the "Nirupan Patra" in favour of the predecessors of the parties in 1955 and the subsequent deed of 1966 includes certain plots of land which were already settled vide the earlier deed. The plaintiffs/opposite parties acquired the disputed property and have been possessing the same. Their possession was disturbed by the defendants/petitioners which led to institution of the suit. Learned advocate tried to impress upon the Court that Section 5A of the Act of 1953 does not stand in the way of the transfer as no enquiry was made with regard to the said transfer as required by the said provision. The defendants/petitioners executed three sale deeds relying upon the deed of 1955 and are therefore estopped from challenging the validity of the deed. The properties having been settled by virtue of the deed of 1955, no subsequent deed could have been executed in respect of the properties covered by the earlier deed. 8. The defendants/petitioners executed three sale deeds relying upon the deed of 1955 and are therefore estopped from challenging the validity of the deed. The properties having been settled by virtue of the deed of 1955, no subsequent deed could have been executed in respect of the properties covered by the earlier deed. 8. The issues raised by the parties are required to be dealt with one after the other. 9. Firstly, the petitioner urged that the plaint does not disclose a cause of action and is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. A perusal of paragraph 9 of the copy of the plaint reveals that according to the plaintiffs, defendant nos. 1 & 2 tried to cause obstruction in the plaintiffs' peaceful possession of the suit property by raising a boundary wall in dag no. 1344 which led to institution of the suit. In other words, paragraph 9 discloses the cause of action of the suit. Paragraph 12 of the plaint states that such cause of action arose on 22nd Chaitra, 1420 B.S corresponding to 06-04-2014 and 25th Ashwin 1421B.S corresponding to 12-10-2014 and was continuing till filing of the suit. The plaint, thus, being considered in its entirety, specifically discloses a cause of action leading to the suit and is not liable to be rejected under Order VII Rule 11(a) of the Code. 10. Secondly, the petitioners claim that the suit is barred by limitation as it was filed well beyond the statutory period of time. 11. It transpires from a plain reading of the plaint that the suit was for a decree for declaration and permanent injunction. It is not disputed that the plaintiffs/opposite parties were aware of the deed of 1966 in 2012 or even earlier when they preferred an appeal under Section 54 of the West Bengal Land Reforms Act 1955 against an order passed by the BL & LRO on 23-05- 2012. The said case as well as appeal pertains to mutation of the property in favour of the parties. In the present suit, the plaintiffs/opposite parties prayed for declaration of their title in respect of the property and permanent injunction restraining the defendants/petitioners from disturbing their peaceful possession therein. Cause of action of the suit arose on 06-04- 2014 and 12-10-2014 and the suit was filed on 27-10-2014, i.e., within the statutory period of time. In the present suit, the plaintiffs/opposite parties prayed for declaration of their title in respect of the property and permanent injunction restraining the defendants/petitioners from disturbing their peaceful possession therein. Cause of action of the suit arose on 06-04- 2014 and 12-10-2014 and the suit was filed on 27-10-2014, i.e., within the statutory period of time. Knowledge of the plaintiffs with regard to the deed of 1966 is not an issue in the present suit and it was only when the plaintiffs suffered a threat to their title and possession that they approached the Court for redressal. Therefore the suit cannot said to be barred by limitation. 12. Thirdly, the petitioners tried to impress upon the Court that the suit was barred by the principles of Res Judicata as the issue raised in the suit was finally decided before the Land Reforms and Tenancy Tribunal and could not have been agitated afresh. 13. It is clearly envisaged in Section 11 of the Code of Civil Procedure that "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." 14. It appears that the opposite parties/plaintiffs filed a mutation case before the BL & LRO for recording their names in respect of the suit property and their prayer being turned down, they preferred an appeal before the Tenancy Tribunal which allowed their prayer and directed that the LR record of rights be prepared accordingly. The case before the BL & LRO and the Tenancy Tribunal pertains to the record of rights whereas the present suit is for a decree for declaration and permanent injunction. The issue in the present suit cannot be said to be directly and substantially in issue in the previous case and the issue in the present suit not being heard and finally decided by any other Court of competent jurisdiction earlier, the question of the suit being barred by the principles of Res Judicata does not arise. 15. The issue in the present suit cannot be said to be directly and substantially in issue in the previous case and the issue in the present suit not being heard and finally decided by any other Court of competent jurisdiction earlier, the question of the suit being barred by the principles of Res Judicata does not arise. 15. Next, in order to determine whether the deed dated 26-12-1954 was a mere paper transaction and rendered invalid in view of the restriction laid down under Section 5A of the West Bengal Estates Acquisition Act, 1953, the relevant portion of the said provision is required to be set out: "Section 5A. Restriction on certain transfers.- (1) The State Government may after the date of vesting enquire into any case of transfer of any land by an intermediary made between the 5th day of May, 1953 and the date of vesting, if in its opinion there are prima facie reasons for believing that such transfer was not bona fide. (2) If after such enquiry the State Government finds that such transfer was not bona fide, it shall make an order to that effect and thereupon the transfer shall stand cancelled as from the date on which it was made or purported to have been made:" 16. In the case in hand, the property was transferred by virtue of deed dated 26-12-1954, i.e., between 05-05-1953 and the date of vesting. Admittedly no enquiry as laid down under the said provision was made by the State Government and it can be inferred that no prima facie reason was found by the Government "for believing that such transfer was not bona fide." In view of such stance taken by the State Government, it can be reasonably concluded that such transfer was held to be bona fide and cannot be brushed aside as a mere paper transaction or as invalid. 17. The apple of discord between the parties is a couple of deeds allegedly executed by the original owner of the property Chinta Haran Mondal in favour of the predecessors of the parties. The petitioners/defendants placed reliance on the deed dated 02-02-1966 whereas the opposite parties/plaintiffs relied upon the deed dated 26-12-1954. 17. The apple of discord between the parties is a couple of deeds allegedly executed by the original owner of the property Chinta Haran Mondal in favour of the predecessors of the parties. The petitioners/defendants placed reliance on the deed dated 02-02-1966 whereas the opposite parties/plaintiffs relied upon the deed dated 26-12-1954. Legality, validity and genuineness of the deeds as well as the right, title, interest and possession of the parties in respect of the property in question can be determined only by way of evidence to be adduced by the parties during trial of the suit. Such mixed questions of law and fact can under no circumstances be decided at the preliminary stage of the suit. Such disputes also do not affect the maintainability of the suit in its present form and prayer. 18. The learned trial court has elaborately dealt with all the points raised by the petitioners/defendants challenging the maintainability of the suit, by way of a reasoned order and there is no illegality or irregularity in the order impugned that requires interference by this Court. 19. Accordingly, C.O. No. 1965 of 2018 is dismissed. 20. Order No. 50 dated 13-06-2018 passed by the Learned Civil Judge (Junior Division) at Haldia in Title Suit No. 257 of 2014 is hereby affirmed. 21. There will be no order as to costs. 22. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.