Calcutta High Court (Appellete Side)
Sayera Bibi vs Kotulpur Farmers' Service ... on 19 November, 2018
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 3546 of 2018
Sayera Bibi
vs.
Kotulpur Farmers' Service Co‐operative Society Ltd. and others
For the petitioner : Mr. Prantick Ghosh,
Mr. Siddhartha Sarkar
For plaintiff/opposite
party no. 1 : Mr. Satrajit Sinha Roy
Hearing concluded on : 12.10.2018
Judgment on : 19.11.2018
Sabyasachi Bhattacharyya, J.:‐
1.The present application under Article 227 of the Constitution of India has been moved by the first defendant in a suit for declaration and consequential reliefs, against the portion of the impugned order whereby the petitioner's application under Order VII Rule 11 (d) of the Code of Civil Procedure, for rejection of the plaint, was dismissed on contest.
2. The suit was instituted for the following reliefs: a) Decree for declaration that the schedule property of the Plaint absolutely seized and possessed by the Plaintiff;
b) Decree for Declaration that the Defendants do not have any right title interest over suit property to interfere with possession of the Plaintiff in schedule property of the plaint;
c) Decree for permanent injunction is required to be granted restraining the Defendant No. 1 to create any obstruction and/or disturbance to the peaceful possession and enjoyment of the Plaintiffs over and in respect of the schedule property of the Plaint.
d) Decree for permanent injunction restraining the Defendant No:‐ 1 to 18 including their men and agents from creating any obstruction to the peaceful possession and enjoyment of the Plaintiff and/or from taking forcible possession over the schedule property of the plaint.
e) Decree for declaration that the Registered Deed of sale dated 28th April 2005 being Deed No: 669 executed by Defendant No. 2 to 18 through the Defendant No:‐ 18 in favour of the Defendant No:‐ 1 is void ab initio and a fraudulent deed collusive in character and is a sham transaction and not acted upon and/or inoperative and is also not binding upon the Plaintiff;
f) Decree for permanent injunction restraining the Defendant No:‐ 1 from changing the nature and character suit property upon alienating, encumbering and or transferring and or creating third party interest over the schedule property upon mortgage or lien thereon.
g) Interest
h) Costs;
i) Further and other reliefs.
3. The grounds in the application for rejection of plaint were: first, that prayer (e) of the plaint, which was the principal relief, was barred under Article 56 of the Limitation Act, 1963, particularly in view of the averments in paragraph no. 14 of the plaint; secondly, that prayer
(b) of the plaint was barred by Section 34 of the Specific Relief Act, particularly since negative declaration was not permissible; and thirdly, that prayer (a) of the plaint was barred by the principle of res judicata.
4. Such contentions were opposed by the plaintiff/opposite party no. 1 by filing a written objection to the said application.
5. The trial court, while dismissing the application for rejection of plaint, held inter alia that the question of limitation involved both facts and law and did not come under the periphery of Order VII Rule 11 of the Code of Civil Procedure, since the said provision involved only points of law. It was further held that the defendant no. 1/petitioner did not plead the point of res judicata properly and that orders of the B.L. & L.R.O. and the D.L. & L.R.O., who were quasi‐judicial bodies, did not attract res judicata. It was also held that the defendant no. 1/petitioner did not specifically mention the provision of law under which the plaintiff's suit was barred.
6. Learned Counsel for the petitioner argues at the outset that the trial court acted without jurisdiction in closing finally the questions raised in the application for rejection of plaint, without even keeping those open to be decided as issues in the suit upon trial on evidence, despite having refused to reject the plaint inter alia on the score that the question of limitation was a mixed question of fact and law.
7. Secondly, it is argued, the blanket observation of the trial court, as to the question of limitation always being a mixed question of fact and law, was erroneous on the face of it and was not a valid proposition of law. Learned counsel places reliance on the averments made in paragraph no. 14 of the plaint, where it was admitted that the execution of the registered deed of sale dated April 28, 2005, which was sought to be challenged in relief (e) of the plaint, had come to the knowledge of the plaintiff on April 11, 2012 itself, whereas the suit was filed sometime in the year 2017. As such, it is submitted, the suit was ex facie barred by limitation, entailing the rejection of the plaint.
8. Learned Counsel for the petitioner next argues that relief (b) of the plaint seeks a negative declaration, which is barred by law.
9. It is contended further that the plaintiff has claimed merely possessory title, which is not maintainable in law, particularly in view of absence of proper pleadings to support it.
10. Lastly, it is submitted on behalf of the petitioner that Section 43 of the West Bengal Land Reforms Act, 1955, which has also been relied on in the plaint (more particularly, in paragraph nos. 2 and 3 of the plaint), could not confer any right on the plaintiff/opposite party no. 1, since the plaintiff was allegedly registered under the West Bengal Societies Registration Act, and became a juristic entity in the eye of law, only on December 18, 1976, while the said amended section came into force subsequently, only on January 17, 1977.
11. While controverting such arguments, learned counsel for the plaintiff/opposite party no. 1 submits that Article 58, and not Article 56, of the Limitation Act is applicable to relief (e), and the cause of action for the suit in respect of the said relief arose only when the opposite party no. 1 became entitled to sue for such relief, that is, on January 19, 2017 when, as per paragraph nos. 15 and 20 of the plaint, the notice of correction of the records of rights in favour of the petitioner was issued/received. Hence, the question of the suit being barred by limitation on that score does not arise.
12. It is argued that since the deed of sale dated April 28, 2005, challenged in relief (e), was fraudulent, collusive and thus void ab initio, the opposite party no. 1 need not have challenged the same by claiming relief (e) and could even have avoided the said deed simpliciter, more so since the opposite party no. 1 was not a party to it, and thus not bound by it. Learned counsel for opposite party no. 1 submits that relief (e) is not the principal relief at all, since the claim of the opposite party no. 1 to title is based on possession, coupled with the operation of Section 43 of the West Bengal Land Reforms Act, 1955, which is independent and irrespective of the challenge to the aforementioned sale deed. Hence the suit is not barred by limitation from any perspective.
13. With regard to the petitioner's argument, that Section 43 of the West Bengal Land Reforms Act was not applicable since the same, in its amended form, came into force subsequent to the alleged formation of the opposite party no. 1‐society, the opposite party no. 1 argues that the said section, even prior to the amendment‐in‐question, was substantially the same as post‐amendment, insofar as the material provisions thereof were concerned. Hence, it is submitted, the possessory right of the opposite party no. 1 ripened into permanence by operation of law, that is, Section 43 as mentioned above.
14. Moreover, learned counsel for opposite party no. 1 supports the observation of the trial court that limitation is a mixed question of law and fact, and could not be a basis for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure. To reinforce such argument, learned counsel cites the following two judgments: (2006) 5 SCC 658 [Balasaria Construction (P) Ltd. v Hanuman Seva Trust and Others] (2018) 4 Supreme 170 [Chhotanben and anr. Vs. Kiritbhai Jalkrushnabhai Thakkar and ors.]
15. As to possessory title, learned counsel for opposite party no. 1 submits that the averment of uninterrupted and peaceful possession of the opposite party no. 1 is only an alternative pleading, supplementary to the title pleaded under Section 43 of the West Bengal Land Reforms Act, 1955, in paragraph nos. 2 and 3 of the plaint.
16. It is next submitted on behalf of the opposite party no. 1, by placing reliance on Sections 45 and 46 of the West Bengal Land Reforms Act, 1955, that those sections provide for transfer only on dissolution of farms, formed within the contemplation of Section 43. As such, there could not be any transfer unless there was dissolution of the farm. Hence, the transfer challenged in relief (e) was, in any event, de hors the law and void.
17. In such view of the matter, learned counsel for the opposite party no. 1, which is the principal contesting opposite party, submits that the present revisional application ought to be dismissed, affirming the order impugned herein.
18. It is the settled position of law that, for the purpose of considering the question of rejection of a plaint, there has to be a plain and meaningful reading of the plaint‐in‐question. In the event the bar of law, for which a rejection of plaint is sought, is arguable or dependent on evidence in the least manner, the plaintiff should not be shut out at the outset, but the plaint ought to be retained on record for a trial on evidence.
19. In the present case, the basis of the plaint case, as to the plaintiff's alleged title, is ensconced in paragraph nos. 2 and 3 thereof. The plaintiff has pleaded, inter alia, that the plaintiff "duly engaged with the activities following the provisions made under Section 43 of the West Bengal Land Reforms Act and was performing its day to day business". It has also been alleged in paragraph nos. 5 and 6 of the plaint that the plaintiff's name was recorded in the records‐of‐rights on due enquiry being held.
20. In this context, it would be essential to look into the provisions of Section 43 of the West Bengal Land Reforms Act, 1955, which are as follows:
Section 43 Formation of Co‐operative Farming Societies (1) Any seven or more raiyats owning lands in a compact block or intending to acquire such land, may form themselves into a Co‐operative Farming Society and apply in writing, in the prescribed form, to the Registrar, Co‐operative Societies, for the registration of such society under [the West Bengal Cooperative Societies Act, 1973]. (2) The Registrar may, after such enquiry as he may deem fit, register the society under [the West Bengal Co‐operative Societies Act, 1973], and grant a certificate of registration and on such registration the provisions of [the West Bengal Co‐operative Societies Act, 1973], subject to the special provisions of this Act, shall apply to such a society and the society may enlist new members in accordance with the rules and bye‐laws under the said Act for the time being in force.
(3) When a Co‐operative Farming Society has been registered under sub‐section (2), all lands, excluding homesteads belonging to the members thereof and forming one compact block, whether owned by them at the time when they became such members or acquired by them subsequently, shall vest in the society, and no member shall be entitled to hold in his personal capacity any land, excluding homestead, which together with any land belonging to him but vested in the society under the provisions of this sub‐section [exceeds the ceiling area applicable to him under Chapter IIB]. (4) When the lands belonging to a member of a Co‐operative Farming Society vest in such society, there shall be allotted to him shares the value of which will, as far as possible, be equal to the value of the lands of the member vested in the society. (5) Notwithstanding anything elsewhere contained in this Act, no Cooperative Farming Society shall have the right to acquire or hold any land except the land which vests in it under sub‐section (3).
21. The above section provides for formation and registration of co‐operative farming societies by seven or more raiyats, owning lands in a compact block or intending to acquire such land. Such lands, excluding homesteads, belonging to the member‐raiyats of the societies at the inception or by subsequent acquisition, would vest in the society, denuding the members of individual claims to such land in personal capacity.
22. However, sub‐section (5) of Section 43 specifically cautions that, notwithstanding anything elsewhere contained in the Act, no co‐operative farming society shall have the right to acquire or hold any land except the land which vests in it under sub‐section (3).
23. Hence, a pre‐requisite for any such co‐operative society to stake a claim to a property would be that the land must initially belong, or be acquired, by one or more of its members and, at the outset, must be formed by raiyats owning lands in a compact block or intending to acquire such land.
24. The plaint case is that the original raiyats of the suit property formed the plaintiff/opposite party no. 1‐Society, which was registered on December 18, 1976 and thereafter the plaintiff was duly engaged in activities "following the provisions made under Section 43 of the West Bengal Land Reforms Act and was performing its day to day business".
25. If the plaint case is taken on face value, the individual rights of the raiyat‐members of the plaintiff‐society vested in the plaintiff‐society by operation of Section 43 of the West Bengal Land Reforms Act, 1955. As such, when the subsequent sale dated April 28, 2005, by the heirs of the original raiyats, took place, the title of the said vendors' predecessor‐in‐interest had already vested in the plaintiff‐society, leaving no title to pass by such transaction. In fact, it is doubtful as to whether the challenge to the sale deed is the primary relief sought in the plaint, which it might appear at the first blush. On the contrary, on a plain and meaningful reading of the plaint, it seems more likely that the rest of the reliefs depend on relief a), seeking a declaration that the scheduled property is absolutely seized and possessed by the plaintiff. Although no specific declaration of title has been claimed, the phrase "seized and possessed", coupled with the pleadings in the body of the plaint, would broadly encompass the right arising within the contemplation of Section 43 of the West Bengal Land Reforms Act, 1955. In the event the plaintiff is entitled to relief a), the rest of the reliefs would become consequential thereto.
26. Even relief e), for declaration that the sale deed dated April 28, 2005, executed by defendant nos. 2 to 18 in favour of defendant no. 1 is void ab initio and fraudulent and collusive in character, would then partially follow, since in that event the vendors of the said deed would be held to be denuded of any title to pass on to the purchaser, and such deed would be relegated to a mere paper transaction.
27. In such a scenario, the question of relief e) becoming time‐barred would become academic, since the said relief would no longer remain the principal relief sought in the suit and, as is well settled, a plaint cannot be partially rejected under normal circumstances.
28. Moreover, since specific allegations of fraud and misrepresentation have been levelled in connection with the said sale deed, including the description in the deed as to the subject‐ matter therein being wrong and one of the vendors therein, namely, Rashmoni Chatterjee, being deceased on the date of execution of the sale deed, it could arguably be pleaded that such fraud vitiated all and could be set up in any proceeding, thereby somewhat diluting the point of limitation.
29. This apart, it could be argued on behalf of the plaintiff that the cause of action for challenging such allegedly fraudulent deed arose only upon the plaintiff receiving the notice of correction of the records of rights in favour of the defendant no. 1, when the latter first asserted her alleged title on the basis of such deed. If that be so, it could not be said that the suit is ex facie barred by limitation, entailing a rejection of the plaint. Although there is a line of judgments which fix the date of registration of a deed as the date of knowledge of the same, yet the circumstances pleaded in the present plaint make the question of limitation fudgy and not apparent on the face of the plaint, thus entitling the plaintiff to a hearing on evidence. This is all the more reason for the court to have desisted from rejecting the plaint before trial.
30. As regards the judgements cited on behalf of the plaintiff/opposite party no. 1, those do not support the contention of the plaintiff that limitation is always a mixed question of law and fact, as a blanket proposition. Both the citations, at best, were rendered in particular factual contexts which might have justified holding certain questions to be mixed questions. As such, the said proposition advanced by learned counsel for the plaintiff/opposite party no. 1 does not hold good.
31. However, in the facts and circumstances of the present case, the question of limitation is arguable and, as such, ought to be decided at the stage of trial on evidence.
32. The other argument of the petitioner as to the suit being barred, in view of a negative declaration having been sought by way of relief b), cannot be accepted, since the said relief does not stand in isolation but has to be decided in conjunction with the other reliefs, in particular relief a).
33. The contention of the petitioner, that the plaintiff claimed mere possessory title, for which the plaint ought to be rejected, is also not based on sound footing. This is so because the way in which relief a) has been couched, could take within its fold the right flowing from Section 43 of the West Bengal Land Reforms Act, 1955.
34. The other argument of the petitioner, as to Section 43 of the 1955 Act being not applicable to the present case since the amended section came into force from January 17, 1977 while the plaintiff‐Society was formed on December 18, 1976, is also not in consonance with law, since the section, as it stood before such amendment, was not materially different from the amended provision, insofar as the relevant portions thereof are concerned.
35. However, all said and done, the trial court, although correct in its conclusions as to dismissal of the application for rejection of plaint, arrived at certain observations de hors the law. It was erroneous, for example, on the part of the trial court to hold, as a blanket proposition, that the point of limitation does not come within the periphery of Order VII Rule 11 of the Code of Civil Procedure. Moreover, absence of specific provision, under which the suit was barred, in the application for rejection of plaint could not be a deterrent for the court below to reject the plaint, if otherwise so demanded by law. Yet, since the conclusion arrived at by the trial judge, by refusing to reject the plaint, was correct, the impugned order has to be sustained.
36. Another aspect of the matter is that the trial court apparently closed the issue of limitation and other objections taken by the first defendant/petitioner on merits, while deciding an application under Order VII Rule 11 of the Code of Civil Procedure, which it could not have done at such a premature stage. It would thus be prudent to leave the trial court to decide all the issues raised in the application for rejection of plaint, to be decided at the trial of the suit.
37. In such view of the matter, C.O. No. 3546 of 2018 is dismissed, thereby affirming the portion of the impugned order whereby the petitioner's application under Order VII Rule 11 of the Code of Civil Procedure was dismissed. However, it is made clear that the observations made by the trial court while passing the impugned order, and by this court herein, are all tentative and arrived at only for the purpose of deciding the application under Order VII Rule 11 of the Code of Civil Procedure. It will be open to both sides to raise all the questions involved in the said application at the time of final hearing of the suit and, if so raised, the trial court will decide such issues independently and without being unduly influenced by any such observation.
38. There will be no order as to costs.
38. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )