Calcutta High Court (Appellete Side)
Rahim Mondal & Ors vs The State Of West Bengal & Ors on 30 July, 2010
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IN THE HIGH COURT AT CALCUTTA
CONSTITUIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
W. P. No. 2758(W) of 2005
Rahim Mondal & Ors.
Vs
The State of West Bengal & Ors.
For the Petitioners : Mr. Jiban Ratan Chatterjee,
Mr. Sudarsan Ghosh.
For the Respondents : Mr. Lalit Mohan Mahato.
Heard on : 23.02.2010
Judgement on : 30.07.2010
Syamal Kanti Chakrabarti, J.:
The present eight writ petitioners have claimed that they are possessing about 5 acres 9 decimal of land under Monirtal Mouza comprising plot nos. 1518, 1520 and 1558 under Khatian No. 1006 by virtue of Patta granted in their favour by the State of West Bengal. After 2 such acquisition they approached the BLLRO, Jaynagar-II, District South 24-Parganas for incorporation of their names which was allowed. Thereafter a Title Suit being T. S. No. 416 of 1970 was filed against them at Baruipur which was dismissed on 12.07.1973 on contest with cost against defendant no. 1 and decreed on compromise against defendant nos. 3, 5, 8 and 9 without cost and also dismissed ex parte without cost against rest. The plaintiff preferred an appeal being Title Appeal No. 781/1973 before the Learned Additional Judge, 7th Court Alipore which was also dismissed on 23.03.1975. Thereafter the appellant preferred a Second Appeal being S. A. 34/1976 which was also dismissed by this Hon'ble Court on 01.09.2004.
2. It is their further contention that the private respondent nos. 4 to 11 are not at all appellant in the said Second Appeal being S. A. 34/1976. Yet they are trying to dispossess the petitioners from the said land with the help of other political and antisocial agencies. Therefore, they forwarded the final order passed in S. A. 34/1976 to the Jaynagar police authority seeking their protection but till date no step has been taken by them against those private respondents. Therefore, they have filed the instant writ petition praying for necessary direction upon the respondents to grant appropriate police 3 assistance so that the petitioners may cultivate their land peacefully and to direct them to act strictly according to law.
3. On 06.05.2005 this Hon'ble Court issued an interim order directing the Officer-in-Charge, Jaynagar Police Station to take necessary steps for the protection of the lives and properties of the petitioners in every possible manner. Thereafter an application has been filed being C.A.N. 1912 of 2008 by the 11 private respondents praying for vacating the said interim order. The said application was disposed of on 14.07.2008 with the direction that the same shall be treated as affidavit-in-opposition of the private respondents to the writ petition and the petitioner shall be at liberty to file reply thereto within two weeks from date. Thereafter, the petitioners filed affidavit-in-reply on 28.07.2008 which can now be treated as their reply to the said A/O of the private respondents.
4. Learned lawyer for the writ petitioners has submitted that the Second Appeal being S. A. 34/1976 has not yet been disposed of on merit and no paper book has yet been prepared. They have filed an application for appointment of Receiver before this Hon'ble Court in 1987. By an order dated 31.10.1987 His Lordship the Hon'ble Justice Monoj Kumar Mukherjee was pleased to pass the following order:- 4
"Your applicants will continue the land and will harvest paddy under the supervision of the Junior Land Revenue Officer of the concerned circle it was also directed that after harvesting your applicants will receive the usefruct but they must deposit at the trial court a sum of Rs. 2000.00 within January 31 of each year and document in proof of such deposit should be produced before the Hon'ble Court on or before February 15 each year. "
The said order was complied with up to 1993 and thereafter they have not deposited the amount before the authority concerned.
5. Subsequently, the writ petitioners have filed an application being C.A.N. 2995 of 2006 arising out of S. A. 34/1976 in which Hon'ble Justice Sadhan Kumar Gupta by order dated 04.09.2006 was pleased to allow the prayer for restoration of the appeal on the following terms:
" Let the appeal be restored to its original file and number on payment of the cost. Office is directed to take immediate steps for getting the appeal ready for hearing. The appellants are directed to pay the cost in favour of the respondents/ opposite parties within three weeks after the vacation and I make it very clear that if the cost is not paid within that period, then the appeal shall not be 5 restored to its original file and the earlier dismissal order will stand. CAN 2995 of 2006 is, thus, disposed of."
But the private respondents have not taken any step for restoration of the Second Appeal being S. A. 34/1976 by payment of cost in favour of respondents/ opposite parties within three weeks after vacation as directed above. So the order of dismissal stands. The petitioners also filed the present writ petition in which the above interim order was passed on 06.05.2005. The respondent applicant also filed another application under Article 226 of the Constitution of India being W. P. No. 8879(W) of 2007 in which the Hon'ble Court by order dated 23.08.2007 has been pleased to direct the private respondents to file affidavits. The present petitioners claim that they are cultivating the land from 2004 as recorded Patta holders. Therefore, the opposite parties have no right to file the instant application for vacating the interim order.
6. Learned lawyer for the private respondents have opposed the move and contended that from the facts disclosed it will appear that there is dispute regarding possession over the disputed plots and now it is open to question. In fact from 06.05.2005 the writ petitioners are not in possession of the disputed property. Therefore, in view of the 6 principles laid down in 2006(4) SCC 501 no police help is permissible when it is open to question as mainfested by the pleadings themselves. Therefore, the interim order should be vacated and the writ petition should be dismissed. Learned lawyer for the petitioner has contended that they are admittedly in possession of the property and the Second Appeal being restored should be treated as still pending. Therefore, in view of the principles laid down in 2004(6) SCC 378 and 2006(5) SCC 539 their prayers should be allowed to ensure police help for retaining their peaceful possession over the disputed land and for peaceful cultivation of the same.
7. Having heard the learned counsel for both the parties and on perusal of the averments and documents filed by both the parties it appears to me that the order dated 04.09.2006 passed by the Hon'ble Justice Sadhan Kumar Gupta while disposing of CAN 2995 of 2006 in S. A. No. 34 of 1976 has not been complied with by the appellants. By such order the Hon'ble Court allowed the prayer for restoration of the appeal subject to payment of cost of Rs. 1,000/- to the respondents within three weeks after the vacation with the clear stipulation that if the cost is not paid within the period the appeal shall not be restored to its original file and the earlier dismissal order will stand. The 7 present applicants, i.e., the respondents in the said application being CAN 2994 of 2006 have claimed in their averment that the appellants/ petitioners in the said CAN have not paid to the respondents the cost of Rs. 1,000/- within 3 weeks after the vacation. In their affidavit also they have not denied this fact and have not produced any document showing payment of such cost to the respondents within the stipulated time. They are also unable to file any document to show that they ever made any prayer for extension of time to pay such cost or comply with the order within the stipulated time. Since they have failed to comply with Court's directions and to discharge this legal obligation, I hold that the Second Appeal being S. A. No. 34 of 1976 is not pending at present and agree with the contention of the learned lawyer for the petitioners that the same shall now be treated as dismissed.
8. In absence of pending Second Appeal the order passed in the First Appeal being T. A. 781 of 1973 is operative. In the first appeal the decree passed in T. S. 416 of 1970 was affirmed and as such reached its finality.
9. So far as factual aspects are concerned, it appears that Palan Gazi and Gopal Gazi being plaintiffs in Title Suit No. 416 of 1970 sought 8 for declaration and permanent injunction in respect of the disputed property measuring 5.09 decimals of land in Plot No. 907 of Khatian No. 1006 and 1006/1, within Manirhat Mouza, under Joynaghore P.S. with further declaration that relevant entries in the R. S. record- of-rights are erroneous. They made further prayer for permanent injunction restraining the defendant no. 1 from interfering with their possession over the suit land since other defendants compromised the suit with them. The suit was contested by the defendant no. 1. Learned Trial Court framed as many as nine issues and ultimately dismissed the suit on contest with cost against the defendant no. 1 and decreed the same on compromise against the defendant nos. 3, 5, 8 and 9 without cost and also dismissed the suit without cost against the ex parte. The Learned Trial Court dismissed the suit on the ground that the suit is barred by Order 2 Rule 2 and Order 23 Rule 1 of the CPC as the plaintiffs have failed to prove their title over the suit land with sanctioned documents. Being dissatisfied with such findings the plaintiffs preferred First Appeal in the VII th Court of the Learned Additional District Judge, Alipore in Title Appeal No. 781 of 1973. The Learned First Appellate Court also by order dated 01.04.1975 dismissed the appeal on contest with cost against the contesting respondent and ex parte against the rest without costs 9 and affirmed the decree of dismissal passed by the Learned Trial Court although on different reasons. The Learned First Appellate Court upheld the judgement and decree passed by the Learned Trial Court but held that the suit is maintainable and not barred under Order 2 Rule 2 or under Order 23 Rule 1.
10. While deciding the claim of title of the plaintiff the Learned First Appellate Court considered the claim of the respondents that the suit land was vested in the state of West Bengal and the plaintiffs were bargadar under the ex-intermediaries and not tenants under matwalies or under the Receiver or one Lutfrnesa Bibi since the interest of the ex-intermediaries vested in the state of West Bengal free from all encumbrances with effect from 15.04.1955 and the state of West Bengal was in possession of the suit land by letting out the same to the licensees at the prescribed rate of Rs. 10/- per acre and that the entries in the relevant R. S. records-of-rights were corrected. Having full knowledge of such legal aspect and fact the plaintiffs and ex-intermediaries are in collusion with one another have manufactured rent receipts and tried to establish that they have title over the suit property by virtue of a decree of compromise with a person who is also an ex-intermediary. She has not retained the suit 10 land on and from 15.04.1955 and as such the same has been duly vested in the state under the operation of law. Yet the plaintiffs filed previously a suit being T. S. No. 349 of 1964 which was dismissed as against the State of West Bengal and solemnana, if any, filed in the suit in which the State of West Bengal is not a party cannot confer any tenancy right upon the plaintiffs after the date of vesting. Having been unsuccessful in the First Appeal the plaintiffs preferred the Second Appeal being S. A. No. 34 of 1976 the fate of which has already been discussed above.
11. The Writ Court cannot enter into examining and declaring the validity of any legal right, title and possession over the suit property afresh on the background of the adjudication of the same by the respective Learned Trial Court and affirmed the Learned First Appellate Court who are the competent authorities to decide the matter. Since the Second Appeal is not pending it can safely be held that the judgement and decree passed by the Learned Trial Court dismissing the claim of the plaintiffs right, title and possession over the suit property has reached its finality and this Writ Court cannot ignore this fact on the basis of the averments made by the parties and the documents filed and that the Writ Court is confined to arrive at a 11 decision on the basis of the averments of the parties and the documents filed.
12. In their application for vacating the interim order dated 06.05.2005 passed in W. P. No. 2758(W) of 2005 the 8 writ petitioners namely, 1) Rahim Mondal, 2) Zeyad Laskar, 3) Ahammad Mondal, 4) Hakim Mondal, 5) Chammad Mondal, 6) Nurislam Mondal, 7) Balai Das and
8) Ebadali Mondal have admitted in paragraph nos. 7 and 8 as follows:-
"7. It may be mentioned herein that as the writ petitioners illegally cultivated the land and the then Junior Land Reforms Officer recommended for Police Protection in favour of the writ petitioners and an application for contempt was moved and the Division Bench of this Hon'ble Court found the then J.L.R.O. as guilty for contempt and was punished. Xeroxed copy of the said judgement dated 18th February, 1997 is annexed hereto and marked with letter P/3 to this petition.
8. Thus it is apparent from the case of the record that in spite of the pendency of the Second Appeal and the Civil dispute the writ petitioners suppressing the material fact obtained order of Police Protection which is not at all permissible as per settled law of the land. Your applicants 12 further state that they have also filed an application under Article 226 of the Constitution of India praying for police protection which was registered as W. P. No. 8879(W) of 2007 and by an order dated 23.07.2007 this Hon'ble Court passed an order for filing affidavits.
Your applicants submit that in the writ jurisdiction the order of rendering assistance to a party for harvesting the crops can not be granted and on the basis of the said order each and every year the Police Authorities have been rendering help to the writ petitioner to possess the land though they have no right, title and interest and possession in the land in any manner whatsoever.
Your applicants further submits that they have been forcibly ousted from the possession of the land with the Police help as per order dated 6.5.2005 and as such the interim order dated 6.5.2005 should be modified and/or vacated in the facts and circumstances of the case following the principles of the law as laid down by the Supreme Court."
13. From their own admission made in such application the aforesaid persons have conceded to their ouster of the possession from the suit property on 06.05.2005 with the police help. So their rights over the disputed property is now an open question which cannot be decided by this Writ Court and prayer for police help in such circumstances 13 cannot be entertained in view of the principles laid down in (2006) 4 SCC 501. Such a claim is also made against the order passed by the Learned successive Courts of competent jurisdiction which has reached its finality. Therefore, I hold that the petitioners are not entitled to claim any such relief which will ultimately nullify the valid decree passed by Civil Courts of competent jurisdiction. This will be completely beyond the scope and jurisdiction of Writ Courts. I fear that the appellants in the Second Appeal having been unsuccessful have shifted their claim from the adjudication made by Civil Courts and brought the matter to the jurisdiction of the Writ Court which should not be entertained particularly when such decree has reached its finality and the opportunity given to the appellants in the Second Appeal for restoration of the appeal subject to payment of cost of Rs. 1,000/- to the respondents therein was not availed of deliberately or otherwise.
14. Accordingly, I hold that there is no merit in this writ application which is accordingly dismissed.
15. The interim order granted earlier stands vacated.
16. I make no order as to costs.
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17. Urgent Photostat certified copy of this order, if applied for, be given to all the parties upon compliance of all necessary formalities.
(Syamal Kanti Chakrabarti, J.)