Calcutta High Court (Appellete Side)
Santosh Kumar Sinha Roy vs State Of West Bengal & Ors on 14 June, 2012
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice Tapan Kumar Dutt
S.A. 302 of 2002
SANTOSH KUMAR SINHA ROY ... PLAINTIFF/APPELLANT.
-VS-
STATE OF WEST BENGAL & ORS. ..
DEFENDANTS/RESPONDENTS
For the appellant : Mr. Bhaskar Ghosh,
Mr. Amitesh Chakraborty
For the respondents : Mr. Bibekananda Tripathy
Heard on : 05.06.2012 and 14.06.2012
Judgment on : 14.06.2012
Tapan Kumar Dutt, J.
This appeal was earlier heard in part on 5th June, 2012 when the learned Advocates for both the sides had appeared before this Court.
The matter has been taken up for further hearing today and after the learned Advocate for the appellant has made and completed his submissions, the learned Advocate for the State respondents submitted that he is not in a position to make any submission with regard to the merits of the matter and thus he declined to make any submission on behalf of the State respondents.
2
In the aforesaid circumstances, this Court had no alternative but to treat the hearing of the matter as concluded. The hearing is thus concluded.
The Court now proceeds to pass the following judgment.
The plaintiff/appellant filed T.S. No. 35 of l992 against the State respondents and it appears that the private respondents were subsequently made parties to the suit. The said suit was placed before the learned Second Munsif at Chandernagore. In the said suit, the plaintiff/appellant prayed for a decree for declaration for his title to the full extent and that the defendants do not have any right, title, interest and possession in the suit property. The plaintiff/appellant also prayed for a decree for permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff/appellant and from taking forcible possession of the suit property. The plaintiff/appellant raised his claim to the suit property on the basis of the registered sale deed dated 12th January, l984 by which he purchased the suit property from the then owner Hrishikesh Dandiswami Ashram, the Trustee and Shebait of Sree Sree Iswar Tarakeswar Shib Thakur Estate. The plaintiff's case was that the L.R. record of right was erroneously prepared and he was recorded as a forcible occupier whereas he should have been shown as the owner in the said record of right.
The plaintiff/appellant alleged that on the basis of the erroneous record of right the defendants were trying to dispossess the plaintiff and thus the plaintiff was compelled to file the said suit. The suit was contested by the defendants. The case of the private defendants was that the plaintiff in collusion with some employees of the said debottar estate managed to get the said sale deed executed. The State defendants alleged that the plaintiff is a trespassers in the suit property but the State defendants did not dispute the fact that the suit property did belong to the said debottar estate and it was used for the purpose of cremation by the Hindu Community of the Village.
The said suit came up for hearing and the parties adduced their respective evidence and the learned trial court by the judgment and decree dated 29th November, l997 dismissed the said suit. It appears that the learned trial court found that the said sale deed on the basis of which the plaintiff/appellant claims title, that is, exhibit 6 does not show that the suit property was sold to the plaintiff for any benefit of the said debottar estate and the said sale deed is not 3 backed up by any proper resolution of the said trustees. The learned trial court referred to Exhibit 7 in this regard. The learned trial court, however, came to a finding that the lands in question along with other property of the said debottar estate are in excess of the ceiling limit and the said land had vested in the State Government. The learned trial court further found that the land in question is a land used for the purpose of cremation and has not been retained by the said debottar estate.
Challenging the said judgment and decree passed by the learned trial court, the plaintiff/appellant preferred Title Appeal No. 259 of l997 and the said Title Appeal was placed before the learned Additional District Judge, 2nd Court, Hooghly. The learned lower appellate court, after hearing the parties dismissed the said Title Appeal and affirmed the judgment and decree passed by the learned trial court. The learned lower appellate court also came to a finding that the Exhibits 7 and 8 do not particularly authorise any of the shebaits/trustees to execute the sale deed and the said exhibits also do not mention which particular land was authorised to be sold to the plaintiff.
The learned lower appellate court was of the view that since the plaintiff failed to bring on record any proper resolution of the trust estate that the trust estate had authorised any of its shebaits/trustees to sell a particular land to the plaintiff, the sale in favour of the plaintiff was not a valid one. It further appears that the learned lower appellate court was of the view that the land in question is a land which is used for cremation purpose and thus for public use. The learned lower appellate court also found that the plaintiff's title was rightly disregarded by the authorities concerned in a proceeding under Section 51A of the West Bengal Land Reforms Act, l955.
Challenging the impugned judgment and decree passed by the learned lower appellate court, the plaintiff has filed the present appeal which was admitted by an order dated 1st October, 2002 passed by an Hon'ble Division Bench of this Court wherein the substantial questions of law were formulated. The learned Counsel appearing on behalf of the plaintiff/appellant referred to the said Exhibit 6 and submitted that the said Exhibit 6 itself would indicate that the sale transactions took place for the benefit of the deity. It appears from the said sale deed that money was realised from the plaintiff by the said trust estate for the benefit of the deity concerned and the said trust estate was also collecting the yearly rents from the plaintiff. It also appears from the said Exhibit 6 that the said trust estate had admitted the fact that the plaintiff had been in occupation of the suit property for more than 12 years before the execution of the said sale 4 deed. Thus, it is clear from the said sale deed that at one point of time the said sale deed was executed on behalf of the said trust estate in favour of the plaintiff. The plaintiff was already in possession of the suit property. The said learned Counsel for the plaintiff/appellant also referred to Exhibit 8 wherefrom it appears that at a meeting of the managing committee of the said Tarakeswar Estate it was resolved that the property should be sold to the plaintiff.
The learned lower appellate court was of the view that such property has not been fully described in the said resolution and thus the sale deed is not backed up by a proper resolution. The learned Advocate appearing on behalf of the plaintiff/appellant is right in his submission that the parties knew exactly which property they were contemplating to be sold. It transpires from the records that the plaintiff had purchased the property in respect of which he was in possession. Simply because the suit property has not been fully described in the resolution, it cannot be said that the sale transaction in favour of the plaintiff was not valid.
The learned Counsel appearing on behalf of the plaintiff/appellant further submitted that the records of right would show that the cremation ground related to Dag No. 266 but the lands in respect of which the plaintiff is in possession and in respect of which the plaintiff has filed the suit are Dag Nos. 266/1047, 266/1048 and 266/1051. Thus, the learned Counsel for the appellant rightly submits that the land for cremation is quite separate from the lands in occupation of the plaintiff. It appears that the plaintiff's case was that it may be at one point of time the plaintiff was in forcible occupation of the suit properties which undisputedly belonged to the said Tarakeshwar Estate. But subsequently, the lawful owners of the said property, that is, the said Tarakeshwar Estate had sold the suit property by way of a registered sale deed for valuable consideration in favour of the plaintiff and thus the plaintiff raised his claim on the said registered sale deed.
Even though the learned lower appellate court has not adequately discussed the point of vesting, the learned trial court came to a finding that the property had vested in the State. The learned Counsel appearing on behalf of the plaintiff/appellant submitted that since no notice with regard to the vesting has been served upon the plaintiff and/or the plaintiff's predecessor-in-title such alleged vesting is bad in law and should be ignored. The said learned Counsel submitted that the plaintiff and/or his predecessor-in-title did not ever have an opportunity to participate in the 5 proceedings regarding the alleged vesting and the said learned trial court was wrong in finding that the suit property had vested in the State.
The said learned Counsel cited a decision reported in 69 C.W.N. 210 (Jatindra Nath Malik vs. Sushilendra Nath Palit ) in support of his contention that since the plaintiff is relying upon the presumption of the correctness of the record of rights, i.e., to the fact that he had been in forcible possession in the suit property at some point of time, it is not necessary for the plaintiff to prove the foundation or basis of the correctness of the entries of the record of rights.
The said learned Counsel cited another decision reported in 2003(1) CLJ 22 (Atul Chandra Mahato & Ors. vs. State of West Bengal & Ors.) in support of his contention that even though the plaintiff is a transferee after the date of vesting under the West Bengal Estate Acquisition Act, the plaintiff is entitled to a notice of vesting as he can be described as a "person interested".
The said learned Counsel cited another decision reported in 2007(3) C.H.N. 178 (Pijush Kanti Chowdhury vs. State of West Bengal & Ors.) in support of his contention that in view of declaration of certain provisions of the West Bengal Land Reforms Act as ultra vires of the Constitution, the State respondents cannot bank upon the allegation of vesting.
As already noted above the learned Advocate for the State respondents declined to make any submission in the present appeal. Having considered the facts and circumstances of the present case, this Court is of the view that the learned Courts below were not correct in coming to a conclusion that the said sale deed (Exhibit-6) was not supported by a proper resolution of the said Tarakeswar Estate. Exhibits 7 & 8 on record, read together, would show that the said Trust Estate did decide to sell certain properties to the plaintiff and ultimately it transpires that the property in respect of which the plaintiff was in possession was sold to the plaintiff by the said Tarakeswar Estate.
This Court is of the further view that the suit property was sold to the plaintiff for the benefit of the deities as reflected in the recitals of the said deed (Exhibit-6).
6
Thus, the learned Courts below were not correct in coming to the conclusion that the sale deed was not a proper one. However, with regard to the point of vesting, it appears to this Court that such point requires further scrutiny.
The learned Counsel appearing on behalf of the plaintiff/appellant has submitted that no notice with regard to the alleged vesting was ever served upon the plaintiff/appellant and/or his predecessor-in-title. In the plaint also no prayer has been made by the plaintiff/appellant with regard to the alleged vesting. It is true that the State-defendant respondents by filing an additional written statement took a plea that during the pendency of the suit the suit property has been vested in a proceeding under Section 14T(6), read with Sections 14T(8), 14T(9), 14T(3) and possession of the suit property was taken by the State respondents on 3rd January, l995.
The learned Counsel appearing on behalf of the plaintiff/appellant submitted that since the proceedings have been allegedly started during the pendency of the suit, such proceedings are mala fide and have been initiated only to defeat the claim of the plaintiff/appellant.
The learned Courts below did not examine this aspect of the matter.
This Court is of the view that since a question has been raised with regard to the vesting of the suit property, this aspect of the matter requires further examination and the plaintiff/appellant should be allowed to amend his plaint by inter alia including an appropriate prayer with regard to the question of vesting.
In view of the discussions made above, the present second appeal is disposed of by setting aside the judgments and decrees passed by the learned Courts below and by sending the suit back on remand to the learned Trial Court for a fresh decision of the matter keeping in view the observations made above in this judgment and by giving an opportunity to the plaintiff/appellant to amend his pleadings. Accordingly, the suit is sent back on remand to the learned Trial Court and the learned Trial Court shall give an opportunity to the plaintiff/appellant to amend his pleadings and also include in the plaint a prayer with regard to the allegation of vesting made by the State defendants and also permit the defendants to file additional written statement.
7
The learned Trial Court shall give opportunities to the parties to adduce further evidence in this regard and thereafter decide the suit afresh in the light of the observations made above.
Let the lower court records be sent back to the learned Court concerned immediately. Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
( Tapan Kumar Dutt, J. )