Calcutta High Court (Appellete Side)
Haripada Malik & Anr vs Birendra Nath Malik & Ors on 8 January, 2021
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
S.A 1206 of 1976
Haripada Malik & Anr.
-Vs-
Birendra Nath Malik & Ors.
For the Appellants: Mr. Ashis Kumar Sanyal,
Mr. Mukteswar Maity.
For the Respondent No.2 & 10:
Mr. Puspendu Bikash Sahu, Mr. Sudhakar Biswas, Mr. Prasanta Bishal.
Heard on: November 22, 2019 and January 8, 2021.
Judgment on: 8th January, 2021.
BIBEK CHAUDHURI, J. : -
1. Defendants in a suit for declaration and permanent injunction are the appellants before this court challenging the concurrent finding of fact by the trial court as well as the First Appellate Court.
2. For proper adjudication of the instant appeal, the following facts are required to be put on record:
3. The respondents as plaintiffs filed a suit for declaration and permanent injunction against the defendants stating, inter alia, that they purchased 2.79½ decimal of land in khatian No.24 by auction purchase 2 from Tamluk Central Co-operative Bank by two sale deeds and also from defendants No.2, 3, 5 and 9 by seven sale deeds. Thus, the plaintiffs became the owners of 2 anas, 16 gondas, 2 karas and 2 kranties share in the said khatian No.24. However, in RS Record of Rights plaintiff's names were recorded in respect of only 2 anas, 1 gonda and 1 kara land erroneously and the remaining share of land was not recorded in their names. The remaining share of land is the subject matter of the suit. It was also pleaded by the plaintiffs that the names of defendant No.1 was wrongly recorded as a bargadar in respect of plot No.117. On the strength of such erroneous entry, the defendants were trying to create disturbance on the plaintiff's lawful possession over the suit property. Therefore, the plaintiffs filed the suit for declaration of their title and permanent injunction restraining the defendants from causing any disturbance in the matter of peaceful enjoyment of the suit property by the plaintiffs.
4. Defendant No.1 and 4 contested the suit by filing written statement.
5. It was contended by defendant No.1 that he was a recorded bargadar in respect of plot No.117 and he used to cultivate the land as bargadar the delivered share of the produce to the plaintiffs regularly.
6. The case of the defendant No.4, on the other hand is that he and his brother Srimanta had 1/6th share in respect of the property recorded in khatian No.24. They mortgaged their share to one Khetro Bera.
Subsequently the heirs of Khetro Bera filed a Mortgage Suit No.136 of 1938 in the 3rd Court of learned Munsif [now, Civil Judge (Junior Division)]. The said suit was decreed and the decree was put in execution. 3 In execution one Bhupen Bera purchased the said 1/6th share of land situated in khatian No.24. Subsequently the said Bhupen Bera sold out the said land to defendant No.4 orally at a sum of Rs.625 in 1353 B.S. It was also contended by defendant No.4 that one Bhajahari was the co- sharer in respect of another 1/6th share of land in khatian No.24. After the death of Bhajahari and his wife Kalashi and daughter Kadambini inherited the said property and Kadambini sold out her share in favour of defendant No.4 by executing a deed of sale dated 12 Falgun, 1360. Thus, the defendant No.4 became the owner of 1/3rd share in the property in suit. The defendant No.4 further contended that the entries in RS khatian were absolutely correct. The said entries were made in terms of a petition of compromise entered into by and between the plaintiffs and the defendants in Objection Case No.21 of 1954 under Section 44(1) of the West Bengal Estates Acquisition Act, 1953.
7. On the basis of the pleadings of the parties and evidence adduced by the witnesses, the learned trial judge by a judgment and decree dated 10th March, 1967 decreed the suit on contest against the defendants No.1-4 and exparte against the rest. Right, title and interest of the plaintiffs over the suit property were declared and it was further declared that the entries in the RS Record of Rights contrary to the plaintiff's title were erroneous. The defendant No.1 was permanently injuncted from cultivating plot No.117 as bargadar.
8. The judgment and decree passed in Title Suit No.8 of 1966 was challenged in Title Appeal No.177 of 1967 by the defendant No.1 and 7. 4 The said appeal was allowed on contest. The judgment and decree passed by the learned trial judge was set aside and the suit was sent back on remand for disposal according to law and in the light of the observation made by the First Appellate Court in his judgment on appeal.
9. After remand Title Suit No.8 of 1966 was heard by the learned Munsif Additional Court at Tamluk and by a judgment and decree dated 11th December, 1968 the suit was decreed on contest without cost against defendant No.1-5 and exparte against the rest.
10. The contesting defendants filed Title Appeal No.140 of 1969 against the aforesaid judgment and decree passed by the learned Additional Munsif, Tamluk. The appeal was again allowed and the suit was sent back on remand directing the learned Munsif to rehear the suit in the light of the observation made in the body of the judgment and in accordance with law.
11. The said suit being renumbered as Title Suit No.203 of 1971 was again heard by the learned Munsif, 3rd Court at Tamluk and it was again decreed on contest against defendant No.4(ka) and 4(kha) and exparte against the rest by a judgment and decree dated 27th October, 1971.
12. The contesting defendants filed an appeal being Title Appeal No.752 of 1971 challenging the said judgment and decree passed in aforesaid Title Suit No.203 of 1971. The appeal was dismissed on contest. The plaintiff's title over 2 anas, 16 gondas, 2 karas and 2 kranties share in the disputed land recorded in khatian No.24 of mouza Parulbari was declared.
5
13. The instant appeal was preferred challenging the concurrent findings of both the trial court and the first court of appeal.
14. It is ascertained from the record that the instant second appeal was admitted for hearing vide order dated 6th July 1976 by the Division Bench of this Court. However, at the time of admission of appeal the Division Bench of this Court did not formulate any substantial question of law. This court vide order dated 11th November, 2019 formulated the following substantial questions of law for hearing of the appeal:-
(1) Whether both the Courts below substantially erred in law in decreeing the suit and dismissing the appeal respectively without considering the provisions of Section 21(3) of the West Bengal Land Reforms Act for determination of Barga raiyat in favour of defendant No.1 in respect of the schedule suit property.
(2) Whether the Courts below substantially erred in law by not relying upon the compromise decree passed in Case No.21 of 1954 under Section 44(1) of West Bengal Estates Acquisition Act by declaring the said compromise application as fraudulent.
(3) Whether both the Courts below substantially erred in law in holding that the suit was not barred under the proviso to Section 34 of the Specific Relief Act.
15. At the risk of repetition and for the purpose of proper adjudication of substantial questions of law involved in the instant appeal, it is 6 necessary to mention that Title Suit No.203 of 1971 was decreed in favour of the respondents on contest against the defendant No.4 (ka) and (kha) and exparte against the rest. Right, title and interest of the respondents over "Ka" schedule land was declared. It was further declared that the entries in the RS Record of Rights in respect of suit property were erroneous and the original defendant No.1 Nikunja Bihari Mali was permanently injuncted to cultivate suit plot No.117 of mouza Parulbari within P.S Nandigram, Purba Medinipur as bargadar.
16. On perusal of the judgment passed by the learned Munsif, 3rd Court at Tamluk in Title Suit No.203 of 1971, it is found that the learned Munsif held that the suit was not barred under Section 34 of the Specific Relief Act. It was pleaded by the defendants that the defendant No.1 was in possession of suit plot No.117 as Bargadar and the original defendant No.4 was in possession in respect of a substantial portion of the suit property by auction purchase in court sale as well by purchase from one Kadambini.
17. The learned Munsif on the basis of the pleadings of the parties and on scrutiny of evidence on record found that the plaintiffs/respondents were in possession of the suit property. The learned Munsif also held that even assuming that defendant No.4 was the owner in respect of a portion of the suit property, he cannot challenge plaintiff's possession over the rest of the property because the possession of the original defendant No.4 was that of a co-sharer and being a co-sharer he cannot challenge the possession of the plaintiffs/respondents. The learned Munsif also found 7 that the defendant No.4 could not produce any document to show that he purchased 1/3rd share of the suit property by auction through court sale. On the contrary, DW4 clearly admitted that the plaintiffs/respondents were in possession of the suit property.
18. It is needless to say that the question as to whether a particular person is in possession of the suit property or not is essentially a question of fact which has been established in favour of the plaintiffs/respondents from clear admission of DW4. When possession of the plaintiffs/respondents was not disputed, the suit cannot be said to be barred under the proviso to Section 34 of the Specific Relief Act. Plaintiffs in possession of the suit property, prayed for declaration of their title over the same as it was clouded by the rival claim of original defendant No.1 and defendant No.4. Both the courts below concurrently held that plaintiffs/respondents were and still are in possession of the entire suit property. The original defendant No.1 claimed to be a bargadar under the plaintiffs in respect of plot No.117. When he claimed to be a bargadar in respect of a plot of land, he cannot challenge the ownership and constructive possession of the plaintiffs in respect of the suit property.
19. Hence I can safely conclude that the suit is not barred under the proviso to under Section 34 of the Specific Relief Act and substantial question of law No.3 is accordingly answered in favour of the respondents and against the appellants.
20. It is borne out of record that a proceeding under Section 44(1) of the West Bengal Estates Acquisition Act which was registered as Case No.21 8 of 1954 was initiated by and between the parties. It is the case of the original defendant No.1 that the said proceeding under Section 44(1) of the W.B.E.A Act was disposed of on the basis of a compromise arrived at by the parties on the basis of which the name of the defendant No.1 was recorded as bargadar in respect of plot No.117. The plaintiffs/respondents pleaded that the said compromise petition was fraudulent and they never executed the said compromise petition putting their signature thereon. The learned trial judge himself compared the signatures of the original plaintiffs appearing in the purported compromise petition with their admitted signatures appearing on the plaint and vokalatnama and concluded that the signatures of the plaintiffs were not identical with their admitted signatures on the plaint and vokalatnama. He also found that the said compromise petitioner is not legal and binding because out of 18 co-sharers, only 8 co-sharers signed the compromise and others were left out. The learned Counsel for the respondents has brought my attention to the judgment passed by the learned Judge in the First Appellate Court. The relevant portion of the judgment of the First Appellate Court is quoted below:-
"At the very beginning, I may mention here that the finding of the learned Munsif as to fraudulent nature of the compromise petition filed in Case No.21 of 1954 as has been decided by the learned Munsif has not at all been challenged before me. The observation of the learned Munsif in respect of two issues 10 and 11 regarding the compromise petition filed in Case 9 No.21 of 1954 under Section 44(1) of the W.B.E.A. Act have not been questioned at all before me. In this contest I have no hesitation to hold that the observations of the learned Munsif that the very basis of the entries in the RS Record of Rights alleged to have been made on the strength of a compromise between the plaintiffs and the defendants which is a fraudulent is not (sic) sound and his observations that the entries cannot be relied upon have to be accepted as such finding of the learned Munsif has not been question before me at all."
21. According to the learned Counsel for the respondents, the appellants cannot challenge the finding of the learned Munsif in the second appeal without challenging the same before this Court.
22. It is further submitted by the learned Counsel for the respondents that barga right is a personal contractual right. Defendant No.1 did not prefer any appeal against the concurrent judgment and decree passed by both the courts below. Therefore, the findings of both the courts below with regard to original defendant No.1's contractual right of bargadar over plot No.117 cannot be questioned in the instant appeal.
23. It is further pointed out by the learned Advocate for the respondents that the preparation of Record of Rights under the West Bengal Estates Acquisition Act is dealt with in Chapter-V of the said Act. Section 39 deals with preparation of Record of Rights. Under Section 39 of the said Act, the preparation or revision of Record of Rights should be made in the manner 10 laid down in schedule-B to the rules. The particulars required to be recorded have been stated in Rule 26. Section 44(1) of the West Bengal Estates Acquisition Act states, "When a record-of-rights has been prepared or revised, the Revenue Officer shall publish a draft of the record so prepared or revised in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein or to any omission therefrom during the period of such publication :
Provided that no order under Section 5A shall be liable to be reopened in pursuance to an objection made under this section."
Section 44(1) has no presumptive value unless it is finally published. The entries in a finally published record of rights must be presumed to be correct unless proved by evidence to be incorrect. This presumption of accuracy is a rule of evidence laid down in Section 35 of the Evidence Act.
The plaintiffs/respondents challenged the correctness of finally published record of rights in respect of plot No.117 so far as it relates to recording of the name of Nikunja Behari Mali as bargadar of the said plot of land on the ground that such recording was made on the basis of a compromise petition which was fraudulent in nature and not signed and executed by the plaintiffs.11
24. It is already stated that plaintiff's case was accepted by the learned Munsif, 3rd Court at Tamluk and it was not challenged before the First Appellate Court by the contesting respondents. It is rightly submitted by the learned Advocate for the respondents placing reliance on the decision of the Hon'ble Supreme Court in the State of Maharashtra & Ors. vs. Admane Anita Moti & Ors reported in AIR 1995 SC 350 that the factual recitals or observations made in a judgment or order are taken to be correct unless rebutted. The burden to rebut it is on the person who challenges it. One of the methods to rebut such observation is to file the affidavit of the person who was present in the Court and to produce such material which may satisfy the Court that the recital in the judgment crept in inadvertently or it was erroneous. The appellants having been failed to challenge the finding of the learned Munsif, 3rd Court at Tamluk in First Appeal practically accepted the said finding as to the fraudulent nature of compromise petition filed in Case No.21 of 1954.
25. Learned Advocate for the appellant, on the other hand strenuously argues that the jurisdiction of the Civil Court is expressly barred under Section 21 of the West Bengal Land Reforms Act in respect of any order passed by the Revenue Officer making entry of the name of bargadar in respect of a piece of land, termination of cultivation by bargadar, orders relating to division and delivery of produce by the bargadar to the raiyat of the land, restoration of land to bargadar and surrender or abandonment of cultivation by bargadar. According to the learned Advocate for the appellants, name of Nikunja Behari Mali was recorded as 12 bargadar in a proceeding of 1954. The suit was filed by the plaintiffs in the year 1966 challenging the compromise petition on the basis of which name of the said Nikunja Behari Mali was recorded as bargadar in respect of plot No.117. The said record cannot be challenged in a Civil Court as the court has no jurisdiction to decide such question.
26. I am not in a position to accept such argument advanced by the learned Advocate for the appellants. If the pleadings in the plaint are closely examined it seems to be clear that the plaintiffs prayed for a declaration that the purported compromise petition filed in Case No.21 of 1954 under Section 44(1) of the West Bengal Estates Acquisition Act was fraudulent and not binding upon the plaintiffs on the ground that petition of compromise was not signed by the plaintiffs. It is held in the case of Molla Sirajul Haque vs. Gorachand Mullick reported in AIR 1993 Cal 58 that compromise not signed by the parties cannot be recorded by the court. Validity of consent order depends wholly upon legal validity of agreement on which it rests. It is already stated that the appellants did not challenge the finding of learned trial court regarding fraudulent nature of the compromise on the basis of which name of Nikunja Bihari Mali recorded as bargadar in respect of plot No.117. At this stage the appellants cannot challenge the said finding of the trial court and urge that the compromise petition was legal, valid and effective. Last but not the least, on proper consideration of the pleadings of the parties, this Court is of the view that the suit was not for denial of barga right of original defendant No.1, but it was for declaration that the compromise 13 decree was fraudulent, illegal and inoperative on the basis of which the original defendant No.1 was declared as bargadar in respect of plot No.117.
27. Thus, I find that the framing of the suit was not barred under the provision of Section 21(1) of the West Bengal Land Reforms Act.
28. Substantial questions of law are accordingly decided against the appellants.
29. For the reasons stated above the appeal fails and the same is dismissed on contest, however without cost.
30. The judgment and decree passed in Title Suit No.203 of 1971 and affirmed in Title Appeal No.752 of 1971 are affirmed.
31. There shall however be no order as to cost.
(Bibek Chaudhuri, J.)