Calcutta High Court (Appellete Side)
Ahuda Bibi & Ors vs Sri Baidya Nath Chakraborty & Ors on 22 September, 2022
22.09.2022
SL No.26
Court No.8
(gc)
SA 65 of 2021
Ahuda Bibi & Ors.
Vs.
Sri Baidya Nath Chakraborty & Ors.
In terms of the order dated 27th January, 2022, a
report is filed by the Assistant Registrar-XVI dated 17th
May, 2022.
The report filed by the Assistant Registrar-XVI dated
17th May, 2022 shall be placed in the Administrative Site.
The second appeal was presented in the year 2005,
but no attempt was made to move the second appeal. The
second appeal was adjourned on 10th January, 2022 and
thereafter on 27th January, 2022 the matter was released
due to lack of determination. Thereafter, the matter again
reappeared on 9th September, 2022 and continued to
appear in the list.
The appellants are not represented nor any
accommodation is prayed for on behalf of the appellants.
The appellate decree dated 5th February, 2005
confirming the judgment and decree dated 13th May, 1997
passed by the learned Trial Judge in a suit for declaration
of title is a subject matter of challenge in this second
appeal.
The appellants at the Trial Court as well as the
Appellate Court had tried to establish that he is a thika
tenant under the defendant Nos.1 and 2 but he failed to
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establish such right both before the Trial Court and the
Appellate Court. It appears from the pleadings and the
materials on record that the case of the plaintiffs was
based on the plea that their predecessor Mijad Sk. was
inducted in the suit property by the defendant Nos.1 and
2 as a thika tenant on consideration of a yearly rent in
kind. The defendants were not inclined to grant any rent
receipt to Mijad Sk. and or the plaintiffs since their
induction in the suit property. The plaintiffs were under
impression that since the enactment of West Bengal
Estate Acquisition Act their right has been vested to the
State as they have been treated as a direct tenant under
the State but contrary to the belief it was found that in
the R.S. Operation, the name of the defendants appeared.
The suit property was situated in Mouza-Beach
Kandi in the district of Murshidabad. According to the
plaintiffs, Mijad Sk. used to cultivate the suit property as
Thika Proja under the defendant Nos.1 and 2. They are in
possession of the suit property since the lifetime of Mijad
Sk. Mijad Sk. was a village rustic and illiterate person.
After his death, his nephew Sahadat Sk. used to look after
the suit property on behalf of the plaintiffs. Sahadat Sk.
used to look after the suit property upto 1368 B.S.
Mahatab Ali who is the husband of the plaintiff No.2 is in
cultivation of the suit property since 1368 B.S. after
Sahadat Sk. The "Math Khasra" R.S.R.O.R. in respect of
the suit property has been prepared in the name of the
plaintiffs but taking advantage of the simplicity and
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absence of the plaintiffs, the defendants recorded their
names in the R.S.R.O.R. in respect of the suit property in
connivance with the settlement authority personnel. The
defendants disclosed the R.S.R.O.R. in respect of the suit
property from where it appears that their names appeared
in the record of rights and it was made with the motive to
oust the plaintiffs from the suit property. The defendants
denied that Mijad Sk. was inducted on contract basis for a
period of seven years from 1331 to 1337 B.S. After expiry
of the said contract period, Mijad Sk. surrendered the
possession of the suit property in favour of the defendants
and thereafter the defendants inducted one Hareshtulla @
Hari Sk. on contract basis for cultivation. Said
Hareshtulla @ Hari Sk. continued said contract upto 1344
B.S. Thereafter, the defendants are in possession and
enjoyment of the suit property through cultivation by
employing their own persons. Thereafter, by virtue of an
amicable settlement between the defendants, the
defendant No.1 was allotted plot No.141 and 435 and
defendant No.2 was allotted plot No.457. The State
Government contested the suit and denied the allegations
in the plaint. It appears that the appellants/defendants
advanced an argument before the Trial Court as well as
before the Appellate Court that on the basic principle
"once a tenant was always a tenant". The possession of
the defendants/appellants by virtue of Exhibit-1 cannot
be denied. It was argued that R.S.R.O.R. (Exhibit 1/a and
Exhibit 1/b) both are invalid and both the R.S.R.O.Rs in
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respect of the suit property in the name of the defendants
have no potentiality in comparison to Exhibit-1. The
appellants referred to Section 19 and 20 of the Bengal
Tenancy Act and cited 88 C.W.N 789 (Kandan Mandi @
Santal & Ors. Vs. Santi Prosad Chatterjee & Ors.) in
support thereof. It was a contention of the appellants that
Mijad Sk. was never evicted or surrendered his possession
of the suit property in favour of the defendants and in
absence of any such proof, the continuity of possession of
Mijad Sk. has to be presumed. The defendants contended
that Mijad Sk. upon contractual period of cultivation was
over, Mijad Sk. surrendered and thereafter subsequent
persons were appointed till the properties are amicably
settled between the parties. It was submitted that the
plaintiffs have failed to establish their continuity of
possession in respect of the suit property. The plaintiffs
also claimed to have failed to prove such continuity as
such they are not entitled to legal benefits of Estates
Acquisition Act, 1953 on the basis of Exhibit-1. In
support of the aforesaid submission, reliance was placed
on 18 C.W.N 545 (Jahar Lal Banduri & Ors. Vs.
Nanda Lal Chaudhuri & Ors.) and the Serial No.3
Schedule III of the Bengal Tenancy Act, 1885. Both the
Courts have considered the said submission as well as the
evidence oral and documentary placed before them. The
Trial Court accepted the position that Mijad Sk. did not
have any interest and the defendant was failed to
establish that there has been a subsequent changes by
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which different persons have occupied the said plot under
the defendants. The Appellate Court affirmed the
judgment of the Trial Court with the following
observation:-
"On scanning of the case record I found no
any scrap of paper by which it could be presumed
that the appellant/plaintiffs were in possession over
the suit property. To substantiate the continuity in
possession over the suit property could be proved by
producing the receipt of payment of rentals issued by
the defendants in favour of the plaintiffs or in favour
of their predecessor Mijad Sk. But no such receipt or
any document is produced by the plaintiffs' side. On
the other hand, the deposition of P.W.4 Mahatab Ali
"no application has been filed by the plaintiffs before
any Settlement Officer for correction of the R.S. record
of the suit properties" - leads to presume that there
was acquiescence on the part of the plaintiffs in
respect of such R.S.R.O.R. Therefore, the flame of
Ext.'1' has been extinguished by producing Ext.'1/a'
and '1/b'. Rather, the report of surveyor Advocate
speaks nothing regarding possession of the plaintiffs
over the suit property. Considering such position, the
legal provisions and cited references of the
appellants' side are not applicable in this suit. ON
the other hand, reliance can be put on the cited legal
provisions and references of the respondents' side to
the extent of possession matter. Therefore, in my considered view, I am of the opinion that the ld. Lower Court below was in righteous path in dismissing the suit. "
This finding of the First Appellate Court read with the evidence on record does not call for any interference. 6
Accordingly, the second appeal being SA 65 of 2021 stands dismissed at the admission stage.
However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)