Calcutta High Court (Appellete Side)
Gopal Lal Mullick & Anr vs Sudarshan Das & Anr on 14 May, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Debangsu Basak
S.A. No. 779 of 1999
Gopal Lal Mullick & Anr.
Vs.
Sudarshan Das & Anr.
For the Plaintiffs : Mr. Bidyut Kumar Banerjee, Sr. Advocate
Ms. Shila Sarkar, Advocate
For the Defendants : Mr. Sk. Abu Sufian, Advocate
Heard on : February 26, 2014
Judgment on : May 14, 2014
DEBANGSU BASAK, J.
A suit for declaration of title, khas possession and damages was dismissed on appeal, after the same was decreed, giving rise to the present second appeal. The impugned judgment was, therefore, of reversal.
The plaintiffs claimed ownership of the suit premises. The plaintiffs claimed that, the Defendant No. 1 was the caretaker who looked after the suit premises at a monthly salary of Rs.45/- per month. The plaintiffs allowed the Defendant No. 1 to reside at the suit premises by erecting temporary structures thereat. The temporary structures erected at the suit property were at the cost of the plaintiffs. The Defendant No. 1 was allowed into the suit property as a licensee. The Defendant No. 1, without any permission of the plaintiffs, allowed the Defendant No. 2 into the suit land. The Defendant No. 2 was the son-in-law of the Defendant No. 1. The plaintiffs revoked the leave and licence of the defendants. The plaintiffs terminated the service of the Defendant No. 1 in the first week of September 1978. In spite of repeated requests, the defendants did not vacate the suit premises. The plaintiffs lodged a complaint with the police authorities. The plaintiffs, thereafter, filed the suit for eviction of the defendants.
The defendants contested the suit by filing written statement. The defendants contended that, the plaintiffs were never in possession of the suit property and at least not since January 3, 1963. The suit property was uncared for filled with jungles and bushes when the Defendant No. 1 entered into possession of the suit property. The Defendant No. 1 developed the land with the help of the Defendant No.
2. Since January 3, 1963 the defendants were enjoying the suit property peacefully and without interruption. The defendants claimed adverse possession.
The suit was initially decreed. The defendants preferred an appeal from such decree. The decree under appeal was set aside and the suit was remanded for retrial. The Appeal Court directed that, the Trial Court should consider whether the plaintiffs could claim an ejectment decree on the basis of their alleged title to the suit land. In the event the plaintiffs prayed for an amendment of the plaint by way of adding a prayer for declaration of title to the suit land the Trial Court should allow the same after giving an opportunity to the defendants to file additional written statement. The Trial Court was directed to frame an additional issue in such event. Both parties were allowed to adduce further evidence. The Appeal Court held that the plaintiffs would not be entitled to contend that the Defendant No. 1 was inducted as a Mali for looking after the suit land inasmuch as the plaintiffs failed to establish it.
After remand the plaintiffs filed a petition for amendment of the plaint dated August 14, 1986. Amendments as prayed for by the plaintiffs were allowed. The plaintiffs claimed to be the recorded and lawful owner of the suit property. The plaintiffs claimed that, they visited the suit property on every holiday or on the necessity for payment of taxes as well as for maintenance. On such visits nobody objected or resisted the plaintiffs and challenged their right of ownership in respect of the suit property till the end of February 1979.
The defendants filed additional written statement. The defendants took the plea of thika tenancy and adverse possession.
Five issues were initially framed for trial. No additional issue was framed after remand. The Trial Court considered the question whether the defendants were a licensee under the plaintiffs or whether by virtue of adverse possession the defendants acquired right, title and interest over the suit property. After considering the evidence on record the Trial Court came to the finding that the defendants failed to establish their adverse possession in the suit property. The Trial Court held that the plaintiffs proved their case. The Trial Court, therefore, decreed the same on contest with costs.
On appeal, it was held that, the plaintiffs failed to prove their title to the suit land.
The plaintiffs were on second appeal. The second appeal was admitted by an Order dated October 8, 1991. Three substantial questions of law were framed by the Order dated April 3, 2013. Such substantial questions of law were: -
I. Whether the learned Judge of the Court of appeal below committed substantial error of law in holding that the suit land vested to the state being estate of intermediary though the plaintiffs/appellants had non- agricultural tenancy thereupon;
II. Whether the learned Judge of the Court of appeal below committed substantial error of law by not holding that the plaintiffs/appellants were non-agricultural tenants in respect of the suit property under Non- agricultural Tenancy Act, 1949 and that they were entitled to retain the suit land as a raiyat even under the relevant provisions of West Bengal Land Reforms Act, 1955 as said land was below the ceiling prescribed under the said Act of 1955;
III. Whether the learned Judge of the Court of appeal below committed substantial error of law by holding that the plaintiffs failed to establish their title in the suit property without applying the correct legal test and thereby came to a wrong finding that the plaintiffs were not entitled to get the decree of eviction though the defendants failed to establish their claim of acquiring title by way of adverse possession.
On behalf of the plaintiffs it was contended that, the plaintiffs were the owners of the suit property. The plaintiffs claimed that, the mother of the plaintiffs Ranu Bala Mallick purchased the suit property from Sk. Mohammad Rashid by a registered deed dated January 10, 1958 which was marked as Exhibit '2'. On July 4, 1966 Ranu Bala Mallick made a gift of the suit property to the plaintiffs. Thereafter, on January 8, 1968 the plaintiffs applied for mutation of their name in respect of the suit land before the Baranagore Municipality. On January 17, 1968 mutation hearing took place. Mutation was allowed. The plaintiffs were mutated in the records of Baranagore Municipality.
It was contended on behalf of the plaintiffs that, West Bengal Estates Acquisition Act, 1953 did not apply to non-agricultural tenancy. The plaintiff's right, title and interest over the suit property were unimpeachable. On behalf of the plaintiffs various provisions of the West Bengal Land Reforms Act, 1955 particularly, Section 3A and Section 4 thereof were placed. Reliance was placed on All India Reporter 1967 Supreme Court page 940 (Shibsankar Nandy v. Prabartak Sangha & Ors.), 75 Calcutta Weekly Notes page 952 (Fakir Chandra Chakravarty v. Pandit Sri Lakshmi Kant Jha & Ors.) and 1976 Volume 1 Calcutta Law Journal page 58 (Amulya Kumar Sur v. Dilip Kumar Sur & Ors.).
On behalf of the plaintiffs it was contended that, the Appeal Court was in error within the meaning of Section 100 of the Code of Civil Procedure, 1908. They also canvassed the point of res judicata.
The effect of Order 41 Rule 33 of the Code of Civil Procedure, 1908 was commented upon on behalf of the plaintiffs. Reliance in that regard was placed on All India Reporter 1966 Supreme Court page 735 (Bhagwati Prasad v. Chandramaul). It was contended that, the Defendant No. 1 was an employee of the plaintiffs. The Defendant No. 1 was engaged as the Mali of the plaintiffs, which in other words, according to the plaintiffs was an employee. They contended that, the plea that the defendants were licensee of the plaintiffs was still available to them. The plaintiffs having proved superior title, the defendants being licensee under the plaintiffs were liable to be evicted from the suit premises and the plaintiffs were entitled to the decree as prayed for.
On behalf of the defendants, the title of the property was traced. The owners of the suit properties were Panchanan Sadhukhan and Nanda Lal Sadhukhan. The Sadhukhans sold the property to Sk. Mohammad Rashid by two registered deed of conveyances dated January 21, 1955 and July 4, 1955. Sk. Mohammad Rashid sold the suit property to Ranu Bala on January 10, 1958. The plaintiffs were the heirs of Ranu Bala.
Apart from the title as aforesaid, the defendants argued that, Panchanan Sadhukhan and Nanda Lal Sadhukhan created non- agricultural tenancy in favour of Sundari Bewa. Non-agricultural tenancy was an independent right. Sundari Bewa transferred her right as a non-agricultural tenant to Nurjahan Bibi in 1953.
By a deed of surrender dated May 30, 1955 Nurjahan Bibi surrendered her non-agricultural tenancy right in favour of Sk. Mohammad Rashid. By virtue of the law of merger, contended the defendants, the lesser interest in the suit property will merger with the higher interest. In the instant case the non-agricultural tenancy right purchased by Sk. Mohammad Rashid merged into the right of Sk. Mohammad Rashid in the suit property. Therefore, according to the defendants on April 15, 1955 the right of Sk. Mohammad Rashid vested in the state. Sk. Mohammad Rashid was not the owner and, therefore, had not right to sell the suit property to Ranu Bala on January 10, 1958. The plaintiffs, therefore, were not the owners of the suit property and as such did not have any cause of action to file the suit.
On behalf of the defendants prayers in the original plaint as well as the amended plaint were commented upon. According to the defendants, the cause of action of the suit did not survive the order passed by the Appeal Court remanding the suit.
I have considered the rival contentions of the parties, the materials on record and the impugned judgment. Of the three substantial questions of law framed by the Order dated April 3, 2013 the question relating to the title of the plaintiffs in respect of the suit property assumed large significance in the facts and circumstances of the instant case. The title deeds of the plaintiffs were not doubted. The contention of the defendants was that, on the date when Ranu Bala (predecessor-in-interest of the plaintiffs) purchased the suit property from Sk. Mohammad Rashid on January 10, 1958 the suit property was vested with the State of West Bengal under the provisions of the West Bengal Estates Acquisition Act, 1953. The defendants contended that, the non-agricultural tenancy existing at the suit property was extinguished on May 30, 1955 with the surrender of such non- agricultural tenancy right by the non-agricultural tenant in favour of the landlord. Nurjahan Bibi by a deed of surrender dated May 30, 1955 surrendered the non-agricultural tenancy right in respect of the suit property to Sk. Mohammad Rashid who was the owner thereof.
The deed of surrender dated May 30, 1955 was also admitted by the parties. Therefore, by the deed of surrender dated May 30, 1955 the right of non-agricultural tenancy of Nurjahan Bibi was extinguished in favour of the owner Sk. Mohammad Rashid. With such extinguishment the non-agricultural tenancy seized to exist at the suit property. Sk. Mohammad Rashid, therefore, became the absolute owner of the suit property without any other interest at the suit property existing under him.
That Sk. Mohammad Rashid was the sole and absolute owner of the suit property could not be disputed. It was also not disputed that the plaintiffs to the suit traced their title of ownership from Sk. Mohammad Rashid. The plaintiffs, therefore, stepped into the shoes of Sk. Mohammad Rashid.
On the contentions of the parties and the documents on record it would be difficult to deny the plaintiffs the reliefs prayed for in the suit. At best the intermediary right of Sk. Mohammad Rashid stood vested with the State of West Bengal under the provisions of the West Bengal Estates Acquisition Act, 1953. The ownership of the suit property stood transferred to the plaintiffs in the manner noted above. The plaintiffs were, therefore, the owner of the suit property. What was required to be considered in the facts and circumstances of the instant case was whether the plaintiffs were able to prove a title superior to that of the defendants at the suit premises particularly when the plaintiffs were not setting up title against the State of West Bengal?
The State of West Bengal was not a party to the suit. The plaintiffs were not seeking declaration of title as against the State of West Bengal. The plaintiffs were seeking eviction of the defendants from the suit property on the ground that the defendants did not have any right to possess the suit property. On the question of title to the suit property the plaintiffs produced documents of title. That apart the plaintiffs were mutated in the records of Baranagore Municipality within whose jurisdiction the suit property was situated. Therefore, by virtue of the mutation, the plaintiffs were entitled to a right to possess the suit property at the very least. As against such rights of the plaintiffs, the defendants did not establish any. The defendants were, therefore, trespassers to the suit property with no right therein. The case of the defendants in their written statement was that the Defendant No. 1 entered the suit property of their own. In the amended written statement the stand of the defendants were of thika tenancy and adverse possession. These two contentions were contradictory to each other.
However, the defendants did not prove any of them. The defendants could not prove thika tenancy. The defendants also did not prove adverse possession. The defendants could not prove any title as against the plaintiffs in respect of the suit property. The claim of adverse possession was disbelieved by the Trial Court. The lower Appellate Court did not comment thereon. The lower Appellate Court had proceeded to find that the plaintiffs did not establish title.
In Shibsankar Nandy (supra) the Supreme Court held that, the West Bengal Non-Agricultural Tenancy Act, 1949 was not ultra vires Article 19(1)(f) of the Constitution of India. It was also held that the scheme of the West Bengal Non-Agricultural Tenancy Act, 1949 afforded security of tenure to tenants and under tenants even to the extent of making their rights transferable and heritable. It was only when such land was sought to be transferred that the immediate landlord was given the right to have it transferred to himself instead of to a third party.
In A. K. Maity (supra) the Division Bench of this Court held that, a non-agricultural tenant of whatever degree was excepted from the definition of intermediary under the West Bengal Estates Acquisition Act, 1953.
In Amulya Kumar Sur (supra) the Division Bench of this Court held that, the combined effect of the definitions of the terms of West Bengal Estates Acquisition Act, 1953 was that if a piece of land was a non-agricultural land the person who held such land under a proprietor, a tenure holder, a service tenure holder or a under tenure holder, was a non-agricultural tenant.
In Bhagwati Prasad (supra) the Supreme Court held that, if a plea was not specifically made and yet it was covered by an issue by implication and the parties knew that such plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitled a party from relying upon it if it was satisfactorily proved in evidence. According to the plaintiffs, the defendants were well-aware that the plaintiffs were seeking eviction on the ground of lack of title of the defendants. The defendants were also aware that they came into the suit property as an employee. With the notice of termination the defendants were required to vacate the suit premises.
In view of the substantial question of law relating to title to the suit property being answered in favour of the plaintiffs the other two substantial question of law became academic.
In the facts of the instant case the plaintiffs proved a title which was superior to that of the defendants in respect of the suit property. The plaintiffs would, therefore, be entitled to a decree for khas possession by evicting the defendants from the suit property in terms of prayer (d) of the plaint. The judgment and decree of the lower Appellate Court is set aside.
S.A. No. 779 of 1999 is allowed accordingly without any order as to costs.
Urgent Xerox certified copy of this judgment be delivered to the parties, if applied for, as expeditiously as possible.
[DEBANGSU BASAK, J.]