Calcutta High Court (Appellete Side)
Chandan Kumar Malakar And Ors vs Milan Talukdar And Ors on 24 March, 2014
Author: Asim Kumar Ray
Bench: Asim Kumar Ray
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Second Appeal No. 251 of 2000
Chandan Kumar Malakar and Ors.
-Vs-
Milan Talukdar and Ors.
Present :
Hon'ble Justice Asim Kumar Ray
For the Appellants : Mr. Sabyasachi Bhattacharyya,
Mr. Chandradoy Roy.
For the respondents : Mr. Ashis Bagchi,
Mr.Gautam Thakur.
Heard On : 19.7.2013
Judgment on : 24.03.2014
Asim Kumar Ray, J.
This appeal is directed against the judgment and decree dated January 20, 1998 passed in Title Appeal No. 56 of 1994 affirming the judgment and decree dated July 28, 1993 passed in Title Suit No. 44 of 1991.
Plaintiffs case in brief was that the suit land was vested to the suit. Plaintiffs were cultivating the said land. They were in possession. The suit lands were settled to them by the state granting patta vide Nos. 8, 9 and 10, Case No. 58/RS/G-II 86-87 dated 2-2-1987. They paid rent to the State. Plaintiff No. 1 filed number of cases against defendant No. 1 and others as they were disturbing the plaintiffs' possession in the suit property. The defendant threatened the plaintiffs to take forcible possession of the suit property. So the suit was filed.
Defendants contested the suit by filing written statement. It was their case that one Pandab Lal Das was the owner of the suit land who settled the same with Sohan Lal Pal by virtue of rent receipt. The name of Sohan Lal Pal was recorded in respect of the suit land. Later the same was vested to the State as non-retain land of Pandab Lal Das. Sohan Lal Pal sold the suit land to the defendants by Kobala dated 20-7-1977. Some Santhals forcibly entered into the suit land but they left it after executing 'Nadabi nama.' The plaintiffs were creating trouble in the suit land on the basis of a fraudulent patta which they have received on October 9, 1990. Some plaintiffs were minor at the time of granting patta in respect of the suit land. The defendants prayed for dismissal of the suit.
Learned Trial Court dismissed the suit and the same was affirmed by the first Appellate Court. In the aforesaid background this is the second appeal before this Court.
The appeal has been heard on the following substantial questions of law:
I Whether the learned Courts below committed a substantial error of law in holding that the "Pattas' granted in favour of the Plaintiffs/Appellants were invalidated by resolutions taken by the L.R. Committee.
II. Whether the learned Courts below substantially erred in law in reopening on merits the grant of 'Pattas' in favour of the Appellants by a competent authority.
III. Whether the learned Courts below overstepped their jurisdiction in disbelieving valid documents of title granted in favour of the Appellants in the absence of any challenge to such documents by the Respondents.
IV. Whether the learned Courts below substantially erred in law in proceeding on the premise that prior possession of the land in question is a factor in the grant of the settlement in favour of the Appellants. V. Whether the learned Courts below overlooked vital evidence in the form of 'Pattas' (Exhibit 1-series ) , Rent Receipts showing payment of rent by the Appellants to the State Government (exhibit 2-series), a certified copy of the J.L.R.O. Report in a criminal proceeding and the oral evidence adduced in the suit to arrive at the perverse finding that the Appellants have not been in possession of the suit property. VI. Whether the learned Courts below committed a substantial error of law in negating the "Pattas' in favour of the Appellants on the ground of minority of the Appellant No. 1.
Mr. Sabyasachi Bhattacharyya, learned advocate appearing for the appellants/plaintiffs has contended that the appellants are Patta holder in respect of the suit land . The 'L.R. Committee' is not a statutory body. It has no competence to declare pattas invalid. A Civil Court is debarred from determining any question which has been decided by , or has to be decided by, an authority under the provision laid down in the West Bengal Land Reforms Act. Section 49 (2) of the West Bengal Land Reforms Act has laid down the procedure to annul settlement of land by Revenue Officer. There is a provisions for appeal against the order passed by the Revenue Officer and the procedure is laid in Section 49 (4) of the said act. Appellants came to know about the resolution taken by the LR Committee for the first time when the same was set up in defence by the respondent. The appellant without seeking a declaration regarding the invalidity of the 'LR Committee resolution' can impeach it without amending the pleadings.
Mr. Bhattacharyya has contended, therefore, that the learned Court below has committed a jurisdictional error in examining and virtually setting aside the valid pattas granted by the competent authority to the appellants. The respondents never challenged the validity of the pattas before any competent authority. He has contended that the point of remaining in possession of the property at the time of its settlement is unnecessary. That apart the appellant had no burden to adduce negative proof that they had no land prior to settlement of pattas in their favour. He has contended that presumption of correctness under Section 114 (e) of the Evidence Act, 1872 is attached to the Official Act of granting patta. Such presumption not being dispelled and there being no competent challenge before any forum against such grant, there is no burden or onus on the appellants to prove their landlessness prior to the said grant. The finding of the learned Court below regarding proof of possession is perverse as the learned Court below overlooked vital evidence which points out to the plaintiffs and not the defendants are in possession of the suit land. He has referred to Ext.1- 1(b)/Pattas, Ext.2 series/rent receipts and certified copy of J.L.R.O. report in connection with a criminal proceeding. He has contended that the evidence of plaintiff witness No. 2 has been overlooked by the learned Court below. Plaintiff has stated in his examination in chief that they are in possession for 15/16 years. There was no cross-examination to the aforesaid evidence. Beside that DW 1 has admitted in his cross-examination that no rent was paid by the defendant and that a proceeding under Section 144 of Cr. P.C. went against him. The finding of both the learned Courts as to the absence of proof of appellants possession are based on no evidence and on an omission to consider vital evidence, giving rise to perversity. Perversity gives rise to a substantial questions of law justifying interference in second appeal.
Mr. Bhattacharyya has contended that Section 49 (1) of West Bengal Land Reforms Act contemplates that the pattas are to be settled without any premium being charged. The settlement , as such in favour of the appellants are in the nature of gift and not a contract simplicitor. Such settlement in favour of one of the appellants , who was a minor at that point of time is not invalid merely on the ground of such grantees. That apart the entire grant in favour of the all appellants cannot be vitiated since only one of the grantees was a minor. The invalidity /irregularities of the pattas cannot be set up without any challenge before a competent forum as provided in the West Bengal Land Reforms Act. The decisions of the learned Courts below be set aside and the appeal may be allowed.
He has relied on the following decisions in support of his contention:
1983 (1) CLJ page 144 (Sk. Kenaram -vs- State of West Bengal); AIR 1967 SC page 1124 (Girijanandini Devi & Ors. vs. Bijendra Narain Choudhary); 1979 (1) CHN page 314 ((Badrujaman -vs- The Sub- divisional Officer , Sadar Hooghly & Ors. ) and 1991 CWN page 693 (para 3 ) (Satish Chandra Halder -vs- Revenue Officer & Ors. ), Mr Ashis Bagchi, learned advocate appearing for the respondents/defendants has contended that the suit was for injunction. The question of title was redundant. The plaintiffs/appellants have failed to prove their possession in respect of the suit land. The settlement of pattas is apparently irregular because at least one of the setlees is minor. A contract with a minor is a void contract. The patta is void as per section 11 of the Indian Contract Act, 1872. The issuance of pattas is vitiated by fraud.
Learned first Appellate Court held that plaintiffs/appellants are creating trouble in respect of the suit land on the basis of the pattas which have been obtained fraudulently and it will appear from the LR Committee report. The LR Committee report has not been specifically challenged by the appellants/plaintiffs. Section 49 (1) under clauses a, b and c of the West Bengal Land Reforms Act, 1955 imposed certain obligation for settlement of land by pattas. The settlement was doubtful. The learned Court below disbelieved the possession on the basis of pattas which are apparently irregular. None of the patta holders except plaintiff No. 1 Subhas Chandra Malakar has deposed. Plaintiff No. 1 was instrumental in making one case after another against the defendants/respondents. The findings as to the possession cannot be said to be perversed and therefore the Court of second appeal should not change or alter the said finding. Defendant Anil Talukdar has deposed that plaintiffs/appellants did not get possession by virtue of patta. There was no cross-examination on that point. He has contended that defendants/respondents can set up a defence that the pattas are not regular and possession was not given on the basis thereof.
Mr. Bagchi has contended that sub-rule (3a) under Rule 20A of the West Bengal Land Reforms Rules 1965 was inserted on 10th May, 1974 to make the block level land reforms advisory committee a statutory body. The resolution were taken by the said committee to cancel the pattas on 7.12.1990 and 21.3.91. The said resolution were signed by BL & LRO and R.O. along with other members of the said committee as such the decision of the LR Committee has some statutory force. Proforma of the patta in Form- 8A will show that indenture being the deed of settlement as a contract. The appellants failed to challenge the decision of the LR Committee . The transaction/settlement was void ab initio and the same is required to be avoided by filing a suit within a period of limitation otherwise title to the property will be lost. The finding as to the possession is a question of facts. The Courts below considering the oral and documentary evidence correctly came to a finding that the plaintiffs/appellants are not in possession and the defendants/respondents are in possession and after such finding is one of the possible conclusion the second appeal must fail. Mr. Bagchi has contended that the Court can always set aside a document which is fraud on Court. The pattas which are on record cannot be gift by any stretch of imagination. It hardly satisfy the legal test of gift under Section 122 and 123 of the Transfer of Property Act,1882. It was also not a case of the plaintiffs/appellants that the plaintiffs got the patta as a gift from the State of West Bengal. The learned Court below has found absence of fairness on the part of the plaintiffs/appellants.
Mr. Bagchi has contended that rent receipt does not create any interest in the property since the said acts through its employees. More so there were endorsement on the rent receipt that payments are being made without prejudice. There is nothing to show that the rents were realised because of the patta. Moreover, there was no argument by the appellants/plaintiffs before the learned Courts below relying on rent receipt and as such they cannot make such argument first time before this Court in second appeal. The suit is under Specific Relief Act for reliefs which are discretionary. The courts below have exercised their discretionary jurisdiction on consideration of materials on record which does not call for any interference. The plaintiffs have failed to prove their possession. They are not entitled to get their permanent injunction. They are to succeed on their own case not on the weakness of the defence.
He has relied on the following decisions in support of his contention :
(2008 ) 4 SCC 594; AIR 1961 Calcutta 359; (2013) 2 (Al LT
386)(High Court ); JT 1996 (1) SC 327; (2008) 3 CHN 635; (2009) 6 SCC 194; (2012) 1 WBLR 756; AIR 1967 SC 1224 and (2001) 8 SCC 584.
Appellant being plaintiff initiated Title Suit No. 44 of 1991 with a prayer for injunction restraining the defendants from disturbing the appellant in their possession over the suit property. It was as such a case of injunction simplicitor. Admittedly the question of title was redundant. Both the Courts below have arrived at a finding that the appellants are not in possession on the contrary respondents are in possession over the suit property. The finding if not based on evidence on record or on omission to consider the evidence breeds perversity. It is well settled that perversity gives rise to a substantial questions of law justifying interference in second appeal. To assess it, it is relevant to look back on the evidence and judgment of both the Courts below.
The P.w.1/plaintiff No. 1 have deposed that they in possession of the suit land since before 1979 and that the Government has given them pattas /Ext.1 to 1(b) in 1986 and 1987. P.W. 2 Gulam Rasul has deposed that plaintiffs possess the suit land for the last 15/16 years. They got the same on patta, before that they had possession. It was a vested land. The D.W.1/defendant No. 1 has stated in his evidence that he purchased the suit land from Sohan Lal Pal in 1977 by a Kobala (Ext.B). Later he knew of its vesting. Some Santhals took possession of the land and later relinquished the possession by two Nadabi nama (Ext. A and Ext. A(1) in his favour. On getting information of the pattas of the plaintiffs in respect of the suit land , he submitted an application before the BL & LRO . The LR committee by a resolution declared the patta illegal. Copies of resolution are -Ext. C and C/1. DW 2 and 3 are employees of Sub-Registry office and settlement office respectively. DW 2 brought the volume containing Kobala (Ext.b) . DW 3 brought the resolution book containing resolution No. 3 and 5 dated 7.12.90 and 21.3.91 respectively. DW 4 Zahurul Haque is a witness of possession of the defendant.
Both the Courts have taken the relevant portions of the evidence of possession of the parties as placed above. But there is no effective finding to what prompted the Courts to jump to a conclusion that plaintiffs/appellants are not in possession and on the contrary, defendants/respondents are in possession. The evidence of PW 1 /plaintiff No.1 regarding payment of revenue to the Government in respect of the suit property has not found place in the judgment of both the Courts though the case of the plaintiff/appellant was that they are in possession by paying revenue to the Government. It is not significant that there was no argument before the learned Courts below from the side of the plaintiffs/appellants on the point of payment of revenue by the plaintiffs/appellants . It appears from the evidence of DW 1. (defendant No. 1) that he purchased the suit land but there is no evidence to the effect that he is in possession since the date of purchase. His evidence goes to indicate that the suit land was vested to the State as it was not retained by the original landlord Pandab Lal Das. Defendants/respondents placed two 'Nadabi nama' showing that the possession of the suit property was handed over to him by some Santhals and the defendant has claimed that he is in possession accordingly.
On close observation of findings of both the Courts it appears that the evidence of PW 1 and Pw2 though quoted but not discussed. The evidence regarding possession was not accepted without any reasons. PW 2 has stated in his examination-in-chief that the appellants have been in possession for 15/16 years . No contrary suggestion was put in his cross- examination to see the impact of such evidence. On the other hand DW 1 has admitted in his evidence/ cross-examination that no rent was paid by the respondents and that proceeding under Section 144 of Cr. P.C. went against them. Therefore, the finding of both the Courts below as to the absence of proof of appellants possession are based on no evidence and on an omission to consider the vital evidence which breeds perversity. The said perversity gives rise to substantial questions of law justifying interference in second appeal.
Chapter VI deals West Bengal Land Reforms Act, 1955 deals with principles of distribution of land. Section 49 of the act is under Chapter VI. On reading of Section 49(1) of the Act it transpires that the pattas contemplated therein are to be settled without any premium being charged. That apart the settlement in favour of one of the appellants is not invalid merely on the ground of minority. Since one of the settlers was a minor , the settlement in favour of all the appellants cannot in any event be vitiated. Furthermore a question comes in whether invalidity /irregularity of the pattas granted in favour of the appellants can be set up without any challenge before a competent authority as provided in the West Bengal Land Reforms Act. Moreover, a Civil Court has no jurisdiction to adjudicate such challenge as it is barred under the provisions laid down in Section 61 of the said Act. In the case of Badrijumman -vs- Sub-divisional Officer, Sadar Hooghly and Ors. , reported in 1979 (1) CHN 314 , it was held that Sub-divisional Officer is the Revenue Officer contemplated in Section 49 (2) of the W.B.Land Reforms Act and the Appellate Authority therefrom is the Additional District Magistrate.
In this case both the learned Courts below have scrutinized the pattas, examined it, questions it validity and even have gone to adorn it as a fraudulent document and thereby virtually set aside the pattas granted by a competent authority. Both the Courts have exceeded its jurisdiction specially when the validity of the pattas were not challenged before any competent authority.
Section 49 (2) of the West Bengal Land Reforms Act empowers the Revenue Officer to annul settlement of land and/or subsequent transfer. Section 49 (4) of the Act provides for appeal against any Order passed under Section 49(2) thereof. This Hon'ble Court in the case of Sk. Kenaram
-vs- State of West Bengal , reported in 1983 (1) CLJ page 144/88 CWN 444 held that the concerned Sub-divisional Officer being the Revenue Officer under Section 49(2) of the W.B. Land Reforms Act, is authorized to annul patta settlements. It was further held that such annulment is to be preceeded by reasonable opportunity of hearing to the person whose settlement is sought to be cancelled.
In the case no such hearing was given to the settlees on 7.12. 1990 and 21.3.90. The LR Committee took a resolution to cancel the pattas. It has been argued by Mr. Bagchi that appellants ought to have sought for a declaration in their suit regarding the invalidity of the LR Committee resolution. The record speaks that the appellants came to know about the LR Committee report when it was sets up in defence by the defendant/respondent and as such the same can be impeached without any amending the pleadings to seek a declaration. This proposition has been laid down by the Hon'ble Apex Court in Girijanandini Devi & Ors. -vs- Bijendra Narain Choudhury , reported in AIR 1967 SC, page 1124. In that case it was contended on behalf of the appellants that where the plaintiff sets up a case that a document relied upon by the defendants in support of their case is a fabrication, it is necessary for him either by his original plaint or by amendment therein to formally plead that the document is a fabrication and that unless he does so he is not entitled to ask the Court to try that plea. The Hon'ble Supreme Court was pleased to hold that whether evidence in support of a party's case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading . It was further held that if the rule suggested by counsel for the appellants were to be followed, trial of suits would be highly inconvenience , if not impossible , because at every stage where a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set up that case. The Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon, be extremely cumbersome and would lead to great delay and in cases to serious injustice.
The facts of the instant second appeal are similar since the purported L.R. Committee Resolution produced by the present Respondents was a document set up in defence for the first time and the Appellants had no necessity to amend their pleading to introduce a separate declaration regarding the invalidity or unreliability of such document but can argue regarding such invalidity in their argument.
The decisions cited on this point by the Respondents are authorities on the point that either the decree passed by a competent Court of law or a private instrument between both parties in a litigation cannot be treated to be void of invalid but a declaration has to be sought and obtained regarding such invalidity. The present purported resolution of "L.R. Committee" does not have the legal sanctity of the decree passed by a competent Court of law.
It is not necessary consideration that the person is to remain in possession of the land in question at the time of its settlement. Section 49(1) of the Act made it abundantly clear and the same has been dealt with in Satish Chandra Halder -vs- Revenue Officer and Ors, reported in 91 CWN
693. The learned first Appellate Court has recorded the argument of the learned advocate of the appellants covering the provisions under Section 49 (2) and 61 of the Act but the judgment has abruptly came to an end leaving that argument unattended.
In the result , the decisions of both the learned Courts below are set aside. The appeal is allowed decreeing the appellants suit.
Urgent Xerox certified copy of this order, if applied for, be given to the parties on usual undertaking.
( Asim Kumar Ray , J.)