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2024 DIGILAW 483 (CAL)

Tapan Mahanta v. Nagjyoti Paswan

2024-03-05

AJOY KUMAR MUKHERJEE

body2024
JUDGMENT : Ajoy Kumar Mukherjee, J. 1. This Second Appeal has been preferred against the judgment and decree dated 13.07.2012 by learned Civil Judge (Senior Division), Raiganj, Uttar Dinajpur in Title Appeal no. 12 of 2011. By the aforesaid impugned judgment learned Court below has affirmed the judgment and decree passed by learned Civil Judge (Junior Division), Raiganj in O.C. Suit No. 197 of 2008. 2. The appellant herein as plaintiff filed aforesaid suit for eviction against the respondent/defendant praying for decree for declaration as to his ownership in the suit property and also for recovery of kash possession by evicting the respondent herein from the suit property, upon revocation of permissive possession and for other reliefs. 3. Plaintiff’s case in a nutshell is that he is owner of 99 decimal of land by virtue of purchase through a registered Deed of Sale being no. 58 dated 31.12.2007 from one Tafar Mahammad who handed over khas possession and he remained in possession since purchase. The respondent no. 1/defendant no. 1 requested the plaintiff on 20.01.2008 for permitting him to reside on the suit land on condition that as and when the suit property will be required for the plaintiff/appellant, the respondent will quit and vacate the suit property. Considering the fact that she was working as a labour of a brick field and since she was in actual necessity of shelter, she was permitted by the appellant herein for erecting dwelling house in the suit property and the respondent no. 1 herein erected a temporary structure therein. Further case of the plaintiff is that the respondent nos. 2 and 3 are the son-in-law and daughter of respondent no. 1. The appellant on several occasions had requested the respondent no. 1 to quit and vacate the suit premises in favour of the appellant but the respondent no. 1 intentionally delayed to quit the same and on 15.09.2000 the respondent no. 1 flatly refused to quit and vacate the suit property, which compelled the plaintiff to file the said suit. 4. Defendant/Respondent no. 1 contested the said suit by filing written statement wherein she has categorially stated that the plaintiff has no cause of action to file the instant suit and he has filed the same supressing material fact. Her specific defence is that one Abdul Khalek was the R.S. recorded owner in respect of the suit property. 4. Defendant/Respondent no. 1 contested the said suit by filing written statement wherein she has categorially stated that the plaintiff has no cause of action to file the instant suit and he has filed the same supressing material fact. Her specific defence is that one Abdul Khalek was the R.S. recorded owner in respect of the suit property. The respondents were very poor having no residence of their own, permission was given bysaid Abdul Khalek for erecting their residence on the western side of the suit plot upon 5 decimal of land and since then they are possessing suit land. Thereafter one Nandalal Pardhoani purchased the said property and the defendant continued there possession in the property. At that time, the defendants were working in the brick field of aforesaid Nandalal. As per provision of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fisherman Act, 1975, the defendants have every right to reside upon the suit property. The defendants also pleaded that plaintiff has no right title or interest upon the said property and plaintiff never gave any permission to the defendant and they have filed the suit only to evict the defendants unlawfully and as such they have prayed for dismissal of the suit. 5. Learned Trial Court after considering the evidence adduced by the parties and the materials placed on record, came to a finding that the plaintiff had purchased the suit property in the year 2007 but the original owner of the suit property Abdul Khalek had permitted the defendant to construct there residential house in the suit property in the year 1960 and since then they are residing in the suit property. Moreover, R.S. Record of Rights stands in the name of original owner Abdul Khalek and plaintiff only filed Municipal Tax receipt, which cannot create title in favour of plaintiff. According to Trial court, when the plaintiff purchased the suit property then it is admitted position that the defendants were in possession over the suit property and as such plaintiff did not give permission to the defendant in respect of their stay in the suit property. Since plaintiff failed to show on which date he had given permission to the defendant, or on which date he revoked permission so he has failed to prove the case of the permission and accordingly Trial Court rejected plaintiff’s prayer. 6. Since plaintiff failed to show on which date he had given permission to the defendant, or on which date he revoked permission so he has failed to prove the case of the permission and accordingly Trial Court rejected plaintiff’s prayer. 6. Being aggrieved by that judgment and decree plaintiff preferred First Appeal which was heard by learned Civil Judge (Senior Division), Raiganj being aforesaid O.C. Appeal No. 12 of 2011. Learned First Appellate Court disposed of said appeal in favour of defendants/respondents observing that the appellant failed to establish his right title interest over the suit property and failed to establish grounds of allegation and that he revoked the permission being the rightful owner, and as such learned Court below dismissed the appeal and affirmed the judgment and decree passed by the Trial court. 7. A Division Bench of this court while admitting this Second Appeal has been pleased to held that this appeal will be heard on the following substantial question of law. “Whether the courts below substantially, erred in law in holding that the defendants are entitled to get the protection under the West Bengal Acquisition of Homestead Land for Agricultural Labourers Artisans and Fisherman Act, 1975, inasmuch as the suit land being “Dola”, that is, agricultural land under Raiganj Municipality and, thus, excluded from the purview of the said Act, 1975?” Decision With Reason 8. It is not in dispute in the present context that the plaintiff has filed and proved his deed of purchase in respect of the suit property which is marked as Exhibit-1 and the Government rent receipt is marked as Exhibit 2 and Municipal Tax receipt is marked Exhibit-3 which stands in the name of plaintiff. It is true that when the plaintiff has filed the suit claiming ownership in the suit property, onus primarily lies upon the plaintiff to prove his right title interest in the suit property. Plaintiff’s aforesaid registered title deed and the documents in support of possession has not been declared as null and void by any competent Court of law. Accordingly plaintiff has successfully discharged his initial burden. In the said background when the defendant has claimed that he has right to possess the suit property under the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fisherman Act, 1975, the onus shifted upon the defendant/respondents to establish their right title interest in the suit property. Accordingly plaintiff has successfully discharged his initial burden. In the said background when the defendant has claimed that he has right to possess the suit property under the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fisherman Act, 1975, the onus shifted upon the defendant/respondents to establish their right title interest in the suit property. 9. Under the provision of the Act of 1975 conferment of title (PATTA) can be acquired upon homestead by the occupier on the basis of acquisition by the State Government and, thereafter, upon vesting of land in favour of such occupier as provided in Section 4 of the Act of 1975. The defendant in the present context has failed to show a single scrap of paper in support of conferment of title by Government in respect of the suit property under the Act, 1975. 10. Learned Trial court made a perverse finding that plaintiff admitted that when he purchased the property defendants were admittedly in possession of the suit property and accordingly he held since he has not given permission to possess, so he has no right to revoke the licence. Here though plaintiff in his plaint has not admitted that when he purchased the property the defendant were in possession of the suit property but even if the defendants are in long possession of the suit property prior to plaintiff’s purchase that alone cannot confer any title in favour of the defendant. 11. Similarly, the First Appellate Court has also made a perverse finding that the appellant has failed to establish the right title interest over the suit property and that plaintiff also failed to establish that he revoked the permission being the rightful owner. 12. Needless to reiterate that from the exhibited documents plaintiff has established his right title interest in the suit property and when defendant has failed to establish his right title interest in the property, his occupation in the suit property must be permissive and the recorded owner has every right to revoke such permission. In the absence of showing better title on behalf of the defendants, the Courts below ought to have declared plaintiff’s title in the suit property and also to pass a decree of eviction against the defendants from the suit property as sought for by the plaintiff. 13. There is another question of law involved in the present case. In the absence of showing better title on behalf of the defendants, the Courts below ought to have declared plaintiff’s title in the suit property and also to pass a decree of eviction against the defendants from the suit property as sought for by the plaintiff. 13. There is another question of law involved in the present case. It is not in dispute in the present context, that the property mentioned in the schedule to the plaint situates within Raiganj Municipality. It is further submitted that the Raiganj Municipality was established in year 1951. Now Section 1 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers Artisans and Fisherman Act, 1975 states that the said Act shall extend to the whole of West Bengal except the areas included within a Municipal Corporation and Municipality, a Town Committee, a notified area and a cantonment and also the area within the Calcutta Metropolitan area. Since the property in question situates within Raiganj Municipality, the Act of 1975 shall not have any application in the present context. In such view of the matter also, Defendants cannot claim any right over the suit property under the Act of 1975. 14. In view of aforesaid discussion the judgments of the Court below being judgment and decree dated 17.07.2012 passed by learned Civil Judge (Senior Division), Raiganj in O.C. Appeal No. 12 of 2011 and the judgment and decree passed by learned Civil Judge (Junior Division), Raiganj in O.C. Suit no. 197 of 2008 dated 16.09.2011 are hereby set aside. 15. Thus, S.A 8 of 2013 is allowed. All connected applications are accordingly disposed of. 16. Aforesaid O.C. Suit no 197 of 2008 is hereby decreed on contest against the defendants. Plaintiff/appellant’s right title interest in the schedule mentioned suit property is hereby declared. Defendants/respondents are hereby directed to quit and vacate the suit property within a period of 60 days from the date of decree, failing which plaintiff/appellant will be at liberty to execute the decree as per law, before the appropriate forum. Court records which were called for be returned at once. 17. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.