Calcutta High Court (Appellete Side)
Smt. Ashoka Dubey & Ors vs Sri Arjun Dey & Ors on 29 March, 2022
Author: Soumen Sen
Bench: Soumen Sen
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Ajoy Kumar Mukherjee
SAT 402 OF 2017
With
I.A. No. CAN 1 of 2019
(Old No. CAN 10983 of 2019)
With
I.A. No. CAN 2 of 2019
(Old No. CAN 10985 of 2019)
Smt. Ashoka Dubey & Ors.
Vs.
Sri Arjun Dey & Ors.
For the Appellant : Mr. Saptangshu Basu, Sr. Adv.
Mr. Pratip Kumar Chatterjee, Adv.
For the Respondent : Mr. Joy Chakraborty, Adv.
Mr. Sandipan Dinda, Adv.
Hearing Concluded On : 16th March, 2022 Judgment On :29th March, 2022
Soumen Sen, J.: This second appeal has come up for admission. The appellant is aggrieved by the judgment and decree dated 14th August, 2019 passed by the Civil Judge (Sr. Div.) Kandi, Murshidabad in Title Appeal No. 15 of 2016 (CIS registration no. 34 of 2016) by which the judgment and decree dated 7th January, 2016 passed by the learned Civil Judge (Jr. Div.) 1st Court, Kandi, Murshidabad in other Suit no. 125 of 2001 was affirmed.
2
Mr. Saptangshu Basu, the learned Senior Counsel submitted on behalf of the appellants submits that in view of the decision of the co- ordinate bench in Kanailal Manna & Ors. v. Bhabataran Santra & Ors. reported in AIR 1970 Cal 99 the Trial Court decree is required to be sent down to the trial court for necessary rectification and/or correction of decree as the trial court decree was passed after the death of the 6th and 7th defendants. It appears from record that the suit was filed in the year 2001 and decreed on 7th January, 2016. The defendant nos. 6 and 7 died on 5th August, 2013 and 24th December, 2005 respectively i.e. after the institution of the suit but before the decree was passed. However, we propose to hear the admission of appeal in order to find out whether any substantial question of law is involved in the second appeal and if we find merit to pass consequential orders.
At the outset we should mention that Mr. Basu has relied upon two decisions of co-ordinate benches in SAT 538 of 2015 (Nemai Chandra Kundu v. Kalyan Das & Ors.) decided on 21st August, 2018 and W.P.L.R.T. 26 of 2019 (Gopal Shasmal v. The State of West Bengal & Ors.) with W.P.L.R.T. 74 of 2019 (Tarapada Ghosh & Ors. v. The State of West Bengal & Ors.) with W.P.L.R.T. 80 of 2018 (Tarakeswar Palit & Ors. v. The State of West Bengal & Ors.) decided on 29th August, 2019 in support of his submission that the judgment and decree passed by both the courts below are without jurisdiction as the disputes between the parties are required to be decided by the West Bengal Land Reforms and Tenancy Tribunal and in the event we take a 3 different view this appeal should await till the special Bench constituted decides the controversy finally.
Before we advert to the said decisions it is necessary to briefly indicate the facts.
The appellants are the defendants in a suit filed by the plaintiff for eviction of the defendants on revocation of licence.
One Ram Nidhi Dey, Lakshman Chandra Dey, Bhuli Bala Dey, Dasorothi Dey were the CS owners in respect of the suit plot. Ram Nidhi Dey was a bachelor. After his death his share in the suit plot was inherited by the plaintiff and proforma defendant nos. 5 to 7 who were the legal heirs of Laksman Chandra Dey. After death of Bhuli Bala Dey her share in the suit plot devolved upon Lakshman Chandra Dey and accordingly he became the owner of share of Bhuli Bala Dey in the suit plot. Accordingly, Lakshman Chandra Dey became the owner of 8 anna share of the suit plot and was in possession of the suit plot.
Ram Nidhi Dey, Lakshman Ch. Dey and Ramkumar Dey (husband of Bhuli Bala Dey) are brothers and Uddhop Dey were their father. Dasorothi Dey was the another brother of Uddhop Dey. Dasorothi Dey was the absolute owner of 8 anna share in the suit plot. He died without leaving any heir and accordingly his share in the suit plot devolved upon Lakshman Ch. Dey. Lakshman Ch. Dey became the owner of 16 anna share in the suit plot.
4
The principal defendants or their predecessor in interest according to the plaintiffs are strangers to the suit plot having no right, title and interest over the same. The plaintiffs and proforma defendant no. 5 to 7 are the absolute owners of 15 decimal land in the suit plot as described in the schedule 'KA' to the plaint. Lakshman Ch. Dey on the basis of the request of Bishnupada Dubey, Tarapada Dubey and Sottya Narayan Dubey the predecessor of the principal defendants in or about December, 1953, orally permitted the said persons to occupy 6 decimal of land on condition to leave the property as and when required. The plaintiff alleged that on the strength of oral permission they continued till Lakshman Ch. Dey died in the year 1969. On the demise of Lakshman Ch. Dey the plaintiff requested the principal defendants to make over possession of the portion of the said land under their occupation but the defendants denied to handover possession and prevented the plaintiffs from taking possession of the aforesaid 6 decimal of land. However, on the basis of the request made by the principal defendants the plaintiffs granted licence on oral permission to the defendants on 15th January, 1970 to occupy the said property till such permission is revoked.
In or about 2001 the plaintiffs were in need of 6 decimal of land and accordingly the defendants were requested to vacate the suit premises. The defendants however, refused to vacate and claim ownership in the suit property on the basis of inclusion of their names in RS and LRROR. The plaintiffs soon thereafter made enquiries when it became revealed that out of 15 decimal of land 9 decimal land was 5 recorded in the name of the plaintiffs and the proforma defendants and out of 6 decimal of land 5 ½ decimal was recorded in the name of the principal defendants. It is alleged by the plaintiff that such recording was erroneous as there was no such foundation for recording of the name of the defendants in the record of right. Neither the plaintiffs nor their predecessors in interest had ever transferred any portion of the suit property in favour of the defendants. It was alleged that the defendants in collusion with the officials of the Settlement office has recorded their name in record of right in respect of 6 decimal of land which is described as 'KHA' schedule land. The aforesaid recording is erroneous, baseless and without any foundation.
On 17th August, 2001 the plaintiff revoked the licence in respect of the aforesaid 6 decimal of land and called upon the defendants to quit and vacate the suit premises. The defendants however, failed to vacate the suit premises. The plaintiff left with no other alternative filed a suit against the defendants for eviction of licencee.
The defendants entered appearance in the suit. In the written statement filed by the contesting defendants it was alleged that the predecessors of the plaintiffs were raiyat but they failed to pay the rent. Originally a house was in existence in the suit plot but that was demolished. However, presently the defendants are in absolute possession of the entirety of 15 decimal land. Lakshman Ch. Dey, father of plaintiff no.1 took 'Bondobosto' in respect of 9 decimal of land from the defendants. The aforesaid 9 decimal of land is situated adjacent to the 6 Village Road. The house of the defendants is situated on the eastern portion of the aforesaid 9 decimal of land which is adjacent to the Village Main Road for their access to their house over 6 decimal of land covering plot no. 1988 since long.
The defendants have their house and courtyard over the aforesaid 6 decimal of land and are enjoying the said property as absolute owners for almost 51 years. The defendants alleged that they are paying government rent and the LRROR has been duly published in the name of the defendants. The defendants have also claimed acquisition of title by way of adverse possession. The defendants alleged that they have acquired adverse possession by way of non payment of rent accompanied by delivery of possession in respect of entire 15 decimal of land over the suit plot. On the request of the plaintiffs they have granted 'Bondobosto' in respect of 9 decimal of land in favour of the plaintiffs. The record of rights was thereafter published on the basis of the aforesaid 'Bondobosto'.
Defendant no.1 (ga), 1(gha) 4, 5, 6 and 7 did not contest the suit. Both the parties adduced oral and documentary evidence. The evidence would reveal that the plaintiff is the raiyat and the predecessors of the defendants were the Zamindars in respect of the suit property. This is clear from the evidence of PW1. PW1 admitted during cross examination that the Zaminders of plot no. 1997 were predecessor in interest of the present defendants Krishnapada Dubey and Diju Pada 7 Dubey. The defendants also admitted that their predecessors were Zaminders of the suit plot. They also admitted that the suit plots were given to Lakshman Ch. Dey and the other family relation of Lakshman at a Khajna (Land Revenue) of Rs.3.5. DW 1 during his cross examination has admitted that the CSROR was prepared in the name of Lakshman as raiyat and the predecessor in interest of the defendants as Zaminders in respect of entire 15 decimal of land in plot no. 1997. The defendants contended that the predecessors of the plaintiffs never paid any rent during the CS period and accordingly the right of the predecessors of plaintiffs as raiyat over the suit property was terminated. DW1 during his cross examination has categorically stated that Lakshman Ch. Dey never paid any Khajna to them.
Section 44 of Bengal Tenancy Act lays down the ground on which non occupancy raiyat may be evicted. The said section reads:
"A non-occupancy raiyat shall, subject to the provisions of this Act, be liable to ejectment on one or more of the following grounds, and not otherwise (namely)-
(a) On the ground that he has failed to pay an arrear rent;
(b) On the ground that he has used the land in a manner which renders it unfit for the purpose of tenancy, or that he has broken a condition consistent with this Act, and, on breach of which, he is under the terms of a contract between himself and his landlord liable to be ejected;
(c) Where he has admitted to occupation of the land under a registered lease, on the ground that the term of the lease has expired;8
(d) On the ground that he has refused to agree to pay a fair and equitable rent determined under Section 46 or that the terms for which he is entitled to hold at such a rent has expired."
The contention of the defendants before the trial court was that the predecessors of the plaintiffs who were the non occupancy raiyats were liable to be evicted under Section 44 of the Bengal Tenancy Act as they had failed to pay arrear rent. However, the defendants before the trial court had failed to produce any evidence to show that the predecessors of the plaintiffs failed to pay any Khajna. On the contrary DW1 in his cross examination has admitted that the predecessors of the defendants did not file any case before any court for realisation of rent from Lakshman. He has also admitted that no case was filed before the then collector for cancellation of raiyati interest of Lakshman. The facts that emerged from the evidence were that the predecessors of the plaintiffs were the raiyat during the CS period in respect of the suit property and the predecessors of the defendants were Zamindars.
The learned trial Judge on examination of the certified copy of CSROR in respect of Khatian no. 249, 257, 251, 217 and 601 being Exhibit. 1 series concluded that Bishnupada and others were the Zamindars of the suit plot and the predecessors of the plaintiffs were raiyat under them. The said exhibit also shows that CSROR in respect of the suit property was duly published in the name of the predecessors of the plaintiffs. Moreover, the defendants also failed to establish that on the request of Lakshman Ch. Dey 'Bondobosto' was given by the 9 predecessors of the defendants in favour of Lakshman Ch. Dey in respect of 9 decimal land.
The appellants/defendants on the one hand had claimed that the possession of the plaintiffs in the suit property was on the basis of an oral licence revoked subsequently and on the other hand claimed ownership on the basis of adverse possession. If the later claim is accepted then the appellants accept the ownership of the plaintiffs. The pleas are mutually inconsistent and destructive.
The appellants claimed that Lakshman Ch. Dey had acquired 9 decimal of land by way of 'Bondobosto' given in his favour. This 'Bondobosto' could not be proved by the defendants/appellants.
It has now been settled that if there is any conflict between entry in the record prepared under the Bengal Tenancy Act and in the revisional record prepared under West Bengal Estate Acquisition Act, the later entry would prevail. (See. Bhawendra Nath Thakur v. Smt. Parul Bala Das & Ors. reported at 1979(2) CLJ 44) Admittedly the predecessors of the plaintiffs were raiyats at the time of cadastral survey (CS) in respect of the suit property and the predecessors of the defendants were the Zaminders.
On the basis of the materials on record, both the courts arrived at a finding that there was no foundation on the basis of which the RSROR was published in the name of the defendants. The evidence on record would show that the plaintiffs were raiyats in respect of the suit property 10 and never evicted from the suit plot. It further transpired during trial that the defendants were in possession of the suit property.
On the basis of the evidence we are of the view that both the courts have rightly held that the defendants are licencee under the plaintiffs.
On such facts we need to consider the bar of jurisdiction under Section 57B of the West Bengal Estate Acquisition Act, 1953 (in short 'WBEA Act') the jurisdiction of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 and the relevancy of decisions relied upon by Mr. Basu. In Nemai Chandra (supra) the issue before the trial court was whether the suit property is liable to be vested in the State and whether such issue can be decided by the Civil Court or by the West Bengal Land Reforms and Tenancy Tribunal of 1997.
Section 57B of the WBEA Act reads:
"57B(2). No Civil Court shall entertain any suit or application concerning any land or any estate, or any right in such estate, if it relates to-
(a) alteration of any entry in the record of rights finally published, revised, made, corrected, or modified under any of the provisions of Chapter V.
(b) a dispute involving determination of the question, an intermediary, is or is not entitled to retain under the provisions of this Act such land or estate or right in such estate, as the case may be, or
(c) any matter which under nay of the provisions of this Act is to be, or has already been, enquired into, decided, dealt with or determined by the State Government or any authority specified 11 therein and any such suit or application which is pending before a Civil Court immediately before the commencement of the West Bengal Estates Acquisition (Second Amendment) Act, 1973, (West Ben. Act XXXIII of 1973), shall abate so far as it relates to all or any of the matters referred to in clause (a), clause (b) or clause (c)."
(emphasis supplied) Section 6 and 8 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 Act are relevant for the present purpose. The said sections are reproduced below:
"6. Jurisdiction, power and authority of Tribunal.- Subject to the other provisions of this Act the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power and authority in relation to-
a) any order made by an Authority under a specified Act;
b) an application complaining inaction or culpable negligence of an Authority under a specified Act;
c) an appeal against an order of the Mines Tribunal appointed under Section 36 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954);
d) application relating to matters under any provision of a specified Act or matters relating to any constitutional validity of any Act under the provisions of a specified Act;
e) adjudication of matters, proceedings, cases and appeals which stand transferred from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act.
8. Exclusion of jurisdiction of Courts- On and from the date from which jurisdiction, power and authority become exercisable under this Act by the Tribunal, the High Court, except where that Court exercises writ 12 jurisdiction under Articles 226 and 227 of the Constitution by a Division Bench, or ant Civil Court except the Supreme Court, shall not entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act." (emphasis supplied) It appears from the aforesaid judgment that Mr. Saptangshu Basu, learned Senior Advocate before the coordinate bench relied upon two decisions of this court namely Jharna Ghosal vs. Satyendra Prosad Dhar reported at 82 CWN 335 and Bishnupada Khatua and Ors. Vs. State of West Bengal reported at 89 CWN 168 in support of his submission that suit was maintainable before Civil Court. The coordinate bench distinguished Jharna Ghosal and Bishnupada on the ground that at the relevant time there was no forum to establish title to land or property and now that the tribunal has been constituted the issue raised in the plaint is required to be decided by the West Bengal Land Reforms and Tenancy Tribunal constituted under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. It was further observed that the tribunal is the forum which is even empowered to declare rights of raiyats. In view of the fact that the suit was instituted by Nemai for determination of question of title concerning 'Kathma Dighi' which Nemai claimed to have not vested in the State, such a dispute relating to vesting of immovable property which can only be decided by the Tribunal. The Hon'ble Division Bench observed that the said issue can only be tried by the tribunal constituted under Section 4 of the 1997 Act. The reasoning is clear in paragraph 17 which reads:
13
"17. The decision is clearly distinguishable on facts. Here substantive relief claimed by the appellant, inter alia, was for a declaration that 'Kathma Dighi' had not vested in the State. Such a declaration could not be had from the civil court in view of the specific bar created by the 1997 Act and it was the tribunal constituted under Section 4 thereof that the appellant should have approached." (emphasis supplied) In Gopal Shasmal (supra) it appears that the West Bengal Land Reforms and Tenancy Tribunal was approached by the petitioners alleging inaction/refusal on the part of the concerned revenue authorities to correct the relevant records of rights on the basis of decrees passed by various Civil Courts. The tribunal dismissed the application on the reasoning that the civil suits were not maintainable in law having regard to the bar created by Section 57B of the West Bengal Estates Acquisition Act, 1953 and therefore, the revenue authorities were not bound by such decrees. The Hon'ble Division Bench after hearing Mr. Saktinath Mukherjee, the learned Senior Advocate appointed as amicus curie passed the following order:
"We had requested Mr. Sakti Nath Mukherjee, learned senior advocate, to assist us as an amicus curiae. According to him, the decision in Pramila Sanfui (supra) was rendered without examining the scheme of the said Act and it appeared to him to be rather confusing. He urged us to bear in mind that a civil suit in respect of the matters referred to in clauses (a), (b) and (c) of sub-section (2) of section 57B, which were quoted in paragraph 26, could be barred but not a suit for declaration of title which is within the exclusive domain of the civil court, ~ the revenue authorities not being competent to decide title.14
Having heard Mr. Mukherjee as well as all other parties, we are of the considered opinion that these writ petitions raise substantial questions of law relating to maintainability of civil suits qua the bar created by section 57B of the said Act. In our opinion, the law needs to be settled once and for all and an authoritative decision by a Larger Bench would facilitate disposal of several litigation pending on the same point before the revenue authorities as well as the tribunal. Such decision would also provide useful guidance for future Division Benches, which could be called upon to decide similar points and, therefore, it would be appropriate to refer these writ petitions to the Hon'ble the Chief Justice for appropriate orders. It is ordered accordingly."
Mr. Basu has submitted that a special bench has been constituted to decide the said issue.
During trial or at the appellate stage the appellant did not raise the bar under Section 57B of the West Bengal Estate Acquisition Act, 1953. The instant case is a suit for eviction of a licencee. The plaintiff has not prayed for declaration of title or any of the reliefs which could attract a bar under Section 57B of the West Bengal Estate Acquisition Act, 1953. It is elementary that Revenue authorities cannot decide a question of title. The WBEA Act, 1953 as the preamble of the Act suggest, provides for acquisition of estates, rights of intermediaries therein, and of certain rights of raiyats and under raiyats. Chapter-V of WBEA Act, 1953 deals with preparation of Record-of-Rights. Section 46 under the said chapter originally created a bar to jurisdiction of civil courts in respect of certain matters. The said section was omitted by the WBEA (second Amendment) Act, 1973. In the instant case, the civil Court is required to find out if 15 the plaintiffs on the basis of the materials on record could establish that the appellants were licencees in respect of the suit plot. In establishing such right reliance or reference to record of rights or any entry in the land records does not necessarily make it a matter to be decided by the tribunal exclusively. This is because entry in record of right does not extinguish someone's right to grant licence, unless his ownership is disproved. Merely because the court is required to look into the record of rights or CSROR or any other land record to arrive at the nature of rights of the respective parties in the suit by itself would not denude the Civil Court in deciding the suit in one way or the other. The parties were well aware that the nature of the suit and issues that are required to be decided could not have been adjudicated upon and decided by the West Bengal Tenancy Tribunal and consciously did not raise such an issue.
We have directed the parties to produce the plaint. We have gone through the plaint. We do not find any averment in the plaint for correction or alteration of the record of rights.
The jurisdiction of Civil Court is plenary. It has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint. The Civil Court is competent to decide all questions involving civil disputes.
Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim ubi jus ibi remedium. A litigant, thus having a grievance of a civil nature has a right to institute a civil 16 suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute.
Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil court's jurisdiction is ousted (Dwarka Prasad Agarwal v Ramesh Chandra Agarwas (2003) 6 SCC 220) The question as regards ouster of a jurisdiction of a civil court must be construed having regard to the scheme of the Act ousting the jurisdiction as also the object and purpose it seeks to achieve.
A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, the averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed de hors the factual averments made in the plaint. The court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. [See. Dhulabhai v State of M.P. 17 AIR 1969 SC 78 and Church of North India v Lavajibhai Ratanjibhai & Ors. reported in AIR 2005 SC 2544: 2005(10) SCC 760] When a jurisdictional issue is raised the court is required to ascertain whether the averments made in the plaint could be decided exclusively by the forum established under such specified or special statute. Unless from a reading of the plaint it appears that the issues raised and reliefs claimed can only be decided by the forum constituted under the special Act, the civil court shall retain its jurisdiction to decide such disputes between the parties. In the instant case although there is a reference of a wrong recording in the record of rights by the respondent no. 4 but no relief was claimed for alteration or revision of the record of rights. The learned trial court has recorded such fact. In fact the plaintiffs did not make any prayer to that effect. The relevant observations are:
"It is the contention of the plaintiffs that the RS ROR has been erroneously published in the name of the defendants and on the strength of the aforesaid erroneous LRROR, the defendants are disturbing the peaceful possession of the plaintiffs though the plaintiffs have revoked their permission given in the favour of the plaintiffs to stay thereon.
On a close scrutiny of the record it is evident that there is no such foundation on the basis of which the RS ROR has been published in the name of the defendants. But this is not the appropriate forum to question about the correctness of the Record of Right". (emphasis supplied) 18 The claim in the plaint is for eviction of a licencee on the ground that the appellants have continued to remain in possession of the suit property after the oral permission was revoked. In fact, it is interesting to note that the appellants have claimed acquisition of interest over the land by way of adverse possession which cannot be adjudicated by the West Bengal Tenancy Tribunal. The incidental reference to the record of rights or CSROR or other land records for the purpose of tracing title or possession cannot in our view oust the jurisdiction of the Civil Court to decide the issue involved in the suit. The substantive claim in the suit is for eviction of a licencee. Moreover, the appellants have never raised the incompetence of the Civil Court to try and determine all or any of the issues involved in the suit. We agree with Mr. Basu that no amount of acquiescence or waiver can confer jurisdiction on the civil court if it is found that there is an inherent lack of jurisdiction in respect of the subject matter of the suit. However, since we are of the opinion that the disputes raised can only be decided by the Civil Court and not by the tenancy tribunal we are unable to accept the submission of Mr. Basu that the Civil Court does not have the jurisdiction to decide the suit.
In view thereof we are not inclined to accept the submission made by Mr. Basu, learned Senior Counsel representing the appellants for referring the matter to the larger Bench or to await the decision of the larger Bench.
No other issues on merits have been argued.19
Under such circumstances, we dismiss the second appeal along with I.A. No. CAN 1 of 2019 (Old No. CAN 10983 of 2019) with I.A. No. CAN 2 of 2019 (Old No. CAN 10985 of 2019) at the admission stage. We also record that we do not find any substantial question of law for admission of the second appeal.
There shall be no order as to costs.
I agree (Soumen Sen, J.) (Ajoy Kumar Mukherjee, J.)