Calcutta High Court (Appellete Side)
Amitava Mitra & Anr vs Sila Ghose & Ors on 19 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 19.11.2019Court No. 19
CL - 39 srm/Cp C.O. 3738 of 2019 Amitava Mitra & anr.
-versus-
Sila Ghose & ors.
Mr. Saptansu Basu, Sr. Adv., Mr. Abhrajit Mitra, Sr. Adv., Mr. Ayan Banerjee, Mr. Satadeep Bhattacharyya, Mr. Awani Kumar Roy, Mr. Surajit Biswas.
... For the Petitioners.
Mr. Haradhan Banerjee, Mr. Biswajit Mukherjee, Mr. Tapas Mukherjee, Ms. Joyita Roy.
... For the Opposite Party.
The petitioners are the defendant nos. 5 & 6 in a suit for declaration, recovery of khas possession, mandatory injunction and permanent injunction. The opposite party/plaintiff filed Title Suit no. 461 of 2019 in the Court of the learned Civil Judge, Senior Division, Barasat, District - North 24- Parganas. It was the specific contention of the opposite party/plaintiff in the said suit that by virtue of inheritance from the father and the unmarried brothers, the opposite party/plaintiff had become owners of 16 annas share of the disputed property.
It has been contended that the predecessor of the defendant nos. 2 to 11 were the vendors who sold the suit property to the father of the opposite party/plaintiff; that the defendant no. 1 had allegedly entered into a 2 development agreement with the defendant nos. 2 to 11; that the petitioners/defendants filed numerous suits with respect to the self same property and obtained ad-interim orders of injunction; that the plaintiff/opposite party contested those suits and ultimately the suits were withdrawn by the petitioners. Taking advantage of the withdrawal of the suits and there being no interim protection subsisting, it is alleged in the plaint that the petitioners were continuously disturbing the possession of the opposite party by making construction and forcefully entering into the suit property by raising a boundary wall.
It has been pleaded that, as the opposite party was a lady and her brothers had met with untimely deaths, taking advantage of the situation the petitioners got their names entered in the record of rights.
It has been stated in the plaint that the defendants/petitioners were trying to forcefully oust the plaintiff from the concerned suit property by making illegal constructions thereon; that the petitioners did not have any right, title and interest in any portion of the suit property and taking advantage of the withdrawal of the suits which were filed by the said petitioners the construction was being illegally carried on.
It is also alleged that by taking advantage of the ad-interim order in the said suits, the petitioners had forcefully entered into the land of the plaintiff and had made certain constructions and thereafter withdrew the suits.
The plaintiff prayed for the following reliefs:
"a) A decree be passed declaring plaintiff 16 annas absolute ownership in respect of 'A' schedule suit property.3
b) A decree be passed against defendants restraining them permanently from raising any construction or further construction on any part/portion of 'A' and 'B' schedule suit property or to create any sort of disturbance in peaceful possession of plaintiff over the suit property.
c) A decree be passed directing defendants to give peaceful delivery of possession on removal of the construction they have raised in respect of 'B' schedule suit property on trespassing on to it, within such time as may be fixed by the court failing which plaintiff be given liberty to get delivery of possession of 'B' schedule property through court on removal of the construction as illegally raised by defendants, at defendants' cost.
d) For mandatory injunction directing defendants remove all their illegal construction they have raised on and upon the 'B' schedule suit property within such time as may be fixed by the court failing which, plaintiff be given liberty to remove the unauthorised construction from 'B' schedule property through court of the cost of defendants.
e) For any other relief or reliefs to which plaintiff may be found entitled to.
f) For cost of the suit."
The said suit was filed on July 5, 2019. The petitioners filed an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, 1908, praying for rejection of the plaint and dismissal of the suit on the ground that the Court could not entertain the dispute involved in the said suit in view of the specific bar contained in the West Bengal Estate Acquisition Act, 1953 and the West Bengal Land Reforms Act, 1955. It was contended that the defendant Nos.2 to 11 were the recorded raiyats of the suit property and their statutory rights in respect thereof were derived from the provisions of the West Bengal Land Reforms Act, 1955. Such rights could not be adjudicated by a Civil Court.
By the order impugned dated August 29, 2019, the learned Civil Judge, Senior Division, 2nd Court at Barasat rejected the application under Order 7 Rule 11 of the Code of Civil Procedure and further granted liberty to the opposite parties to amend the verification in the plaint in view of the objections 4 raised by the defendants. The reasons given by the learned Judge is quoted below:
"Here in this case the plaintiff had made statement that the names of defendant nos.2 to 11 have been recorded in respect of the suit property in L.R.R.O.R. The plaintiff has not prayed for any relief seeking declaration that the L.R.R.O.R. in respect of the suit property has wrongly bee recorded in the name of the defendant nos.2 to 11 nor has prayed for addition or alteration of the L.R.R.O.R. stands in the name of the defendant nos.2 to
11. Therefore, as the plaintiff has not sought for any relief towards recording of the names of the defendant nos.2 to 11 in L.R.R.O.R., it cannot be said that the present suit is barred by the provision of Section- 57B(a), (b) and (c) of the West Bengal Estate Acquisition Act, 1953.
Apart from the above, the Ld. Advocate for defendant nos.5 and 6 submits that the present defendant nos.2 to 11 have become raiyats by virtue of L.R.R.O.R. and the plaintiff has no right to institute this suit claiming herself to be the owner of the suit property by virtue of inheritance after demise of her father and brothers.
It is the settled principle of law that record of rights neither confers title to anybody nor can extinguish the title of anybody.
Therefore, whether the plaintiff is the owner of the suit property by virtue of inheritance or the defendant nos.2 to 11 are the owners of the suit property is a mixed question of law and fact and that cannot be ground for rejection of plaint.
Therefore, considering all I am of the opinion that the grounds taken by the defendant nos.5 and 6 for rejection of plaint are not entertainable and the petition U/O.7, R-11 CPC filed by the defendant nos.5 and 6 is liable to be rejected."
It is submitted on behalf of the petitioners that in view of the decision of this Court in the matter of Sri Nemai Chandra Kundu vs. Sri Kalyan Das & Ors. reported in 2019(1) CLJ (Cal) 355, the learned Civil Court could not entertain the suit as the opposite party had made an averment in the plaint that the defendant Nos.2 to 11 had got their names recorded in the L.R. record of rights taking advantage of the situation of the plaintiff who could not get her name recorded due to health problems. It is the contention of Mr. Basu, learned 5 Senior Advocate, that if ultimately the suit was decreed then the declaration of title of the plaintiff would lead to correction of the record of rights and thus the suit was in effect a bar under Section 57B of the West Bengal Estate Acquisition Act, 1953.
He relies on another judgement of the Hon'ble Division Bench of this Court in the matter of Gopal Shasmal vs. The State of West Bengal & Ors. (In Re:
WPLRT 26 of 2019), Tarapada Ghosh & Ors. vs. The State of West Bengal & Ors. (In Re: WPLRT 74 of 2019 and Tarakeswar Palit & Ors. vs. The State of West Bengal & Ors. (In Re: WPLRT 80 of 2018) by which the Division Bench had referred a similar point to a Larger Bench.
Lastly, Mr. Basu relies on the decision of the Hon'ble Apex Court in the matter of West Bengal Housing Board vs. Pramila Sanfui & Ors. and Bengal Ambuja Housing Development Limited vs. Pramila Sanfui & Ors. reported in (2016)1 SCC 743 and submits that the three-Judges Bench of the Hon'ble Apex Court had held that inclusion of a property in the suit which had devolved upon the legal heirs of an intermediary under a proceeding under Section 6 of the West Bengal Estate Acquisition Act, 1953 could not be allowed in view of the bar imposed by Sections 57-B(2)(a), (b) and (c) of the West Bengal Estate Acquisition Act, 1953.
Mr. Banerjee, learned Advocate appearing on behalf of the plaintiff/opposite party, submits that on a bear reading of the plaint and reliefs claimed, it was clear that the suit was for declaration of title, mandatory 6 injunction, permanent injunction along with a prayer for recovery of khas possession.
None of the averments in the plaint or reliefs prayed for, required adjudication on a point either touching the West Bengal Land Reforms Act, 1955 or West Bengal Estate Acquisition Act, 1953. The clear case of the plaintiff was that as the petitioners were encroaching into the land of the plaintiff and carrying on constructions illegally, a declaration from the Civil Court was necessary upholding the title of the plaintiff in respect of the suit property as her title had been clouded. Further prayer for recovery of khas possession of the encroached portion and permanent injunction was made as other reliefs.
Having gone through the pleadings and the contentions of the defendants in the application under Order 7 Rule 11 of the Code of Civil Procedure, I have no hesitation to hold that the suit filed by the plaintiff, based on the averments in the plaint, was a suit for declaration of title in respect of the property which the defendants had allegedly forcefully entered into and raised constructions and the prayers are also for declaration of title, recovery of possession and permanent injunction restraining the said defendants/petitioners from entering into the suit property and raising further constructions.
Mr. Banerjee relied on the decision of the Hon'ble Apex Court in the matter of Mayar (HK) Ltd. and Ors. vs. Owners and Parties, Vessel M.V. Fortune Express & Ors. reported in (2006)3 SCC 100 and submits that the cause of action has been disclosed in its entirety in the plaint on the basis of the 7 pleadings and the plaint cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure.
While considering an application under Order 7 Rule 11 of the Code of Civil Procedure, the plaint has to be read in its entirety and the cause of action and the reliefs claimed in this plaint, does not indicate that the issues to be decided by the Civil Court was not barred under any law. There was no prayer for a declaration that the record of rights in favour of the petitioners were erroneous and no correction thereof was also prayed for. The dispute involved in this case was neither a dispute with regard to the incorrect entries in the record of rights or the status of the defendants as raiyats or intermediaries.
The decision of the Hon'ble Apex Court in the Pramila Sanfui & Ors. (supra) was rendered in a situation where the Hon'ble Apex Court found that the suit was a specific bar under the provisions of Section 57-B(2) (a), (b) and (c) of the West Bengal Estate Acquisition Act, 1953. In this suit there is no dispute involving determination of a question either expressly or by implication on the subjects covered by either the West Bengal Estate Acquisition Act, 1953 or the West Bengal Land Reforms Act, 1955.
In the decision of Nemai Chandra Kundu (supra), there was a specific prayer for a declaration that 'Kathma Dighi' which was the subject matter of the suit, had not vested in the State.
In the decision of the Hon'ble Division Bench of this Court in the matters of Gopal Shasmal (supra), the subject matter of challenge before Their Lordships were orders passed by the West Bengal Land Reforms and Tenancy 8 Tribunal, holding that the civil suits in which decrees were passed were not maintainable in view of the bar created by Section 57D of the West Bengal Estate Acquisition Act, 1953, and the Tribunal had refused correction of record of rights on the basis of such decrees.
Thus, the decisions relied upon by Mr. Basu with due respect are all distinguishable on facts.
I do not find any illegality or infirmity in the order dated August 29, 2019 passed by the learned Civil Judge, Senior Division, 2nd Court, at Barasat.
The revisional application is, thus, dismissed. There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Shampa Sarkar, J.)