Calcutta High Court
Sunil Kumar Laha And Anr. vs The State Of West Bengal on 14 May, 1992
Equivalent citations: (1992)2CALLT274(HC)
JUDGMENT Paritosh Kumar Mukherjee, J.
1. This is an appeal directed against the appellate judgment and order dated 20th January, 1976, passed by the learned Additional District Judge, Burdwan, in Title Appeal No. 192 of 1974 in dismissing the appeal, preferred by the plaintiff-appellants (herein) and thereby affirming the judgment of the learned Munsif, Second Court, Durgapur, by which the suit for declaration of title in respect of the suit property, filed by the plaintiff was dismissed.
2. This appeal comes up for final hearing in the absence of the State Respondent.
3. The short facts arising in this appeal are as follows :
The land as described in the title of the plaint was a 'tank fishery' and it was used for pisciculture and for fishing from time immemorial. One Shri Nirshengha Murari Pal and three others were the owners of the 'tank fishery' in the suit and the same was taken settlement by one Shibapada Paramanik in 1358 B.S. only at an annual rental of Rs. 10/-. Shibapada Paramanik was in possession of the suit property and it was recorded in his name in the R.S. Khatian and Shibapada was paying rent to the former landlords after even vesting estates to the State of West Bengal.
4. According to the plaintiff, Shibapada had no excess lands above the ceiling of the suit land being a 'tank fishery' and, as such, it cannot be vested to the State of West Bengal. The present plaintiff purchased a suit land by a registered Kobala dated 1st October, 1966, and since then the plaintiffs were in possession thereof and they also paid rent to the State of West Bengal. After purchasing the suit property, the plaintiff converted the suit land into agricultural land. The plaintiff came to know from the local Tahasildar that the suit land was being treated as 'vested land' and possession was sought to be taken by the Junior Land Reforms Officer and, as such, the plaintiffs filed the suit.
5. The defence of the State of West Bengal, inter alia, was that the story of taking settlement by Shibapada is a myth and Shibapada was never in possession of the suit tank though his name was recorded in the R.S. Khatian,
6. It may be stated that the record was lawfully revised by drawing up suo motu proceeding under Section 44(2a) of the West Bengal Estate Acquisition Act, 1953 (hereinafter referred to the 1953 Act) by giving notice to the parties concerned and a proceeding was started being proceeding No. 128 of 1970. The said proceeding, however, was decided by the Assistant Settlement Officer by a judgment and order dated 29th July, 1970 and the entries in Khatian No. 1125 were cancelled.
7. The case of the defendant, inter alia, was that Shibapada never paid 'rent' to his alleged landlords. All the Pal Babus were big raiyats and, as such, the present plaintiff has not acquired any right, title and interest on the basis of purchase from the said Shibapada because Shibapada had no subsisting title to the suit tank.
8. It appears that the learned Munsif on the basis of the aforesaid finding dismissed the suit and the lower appellate court by the impugned judgment affirmed the said decision and came to the following findings :
(a) Shibapada Paramanik took settlement of the suit tank from Pal Babus and Shibapada was in possession of the same. The lower appellate court also came to the finding that Shibapada was in possession although in a proceeding under Section 44(2a) of the 1953 Act, the Assistant Settlement Officer had cancelled the recording in the record of rights by his order dated 29th July, 1970.
(b) The propriety and legality of this proceeding was seriously challenged by the learned Advocate for the appellants whose contention was that the finding of the Assistant Settlement Officer in the same proceeding could not be binding upon the plaintiff and that the Assistant Settlement Officer failed to arrive at a decision in compliance with the provisions of law.
(c) The learned lower appellate court also came to the finding that it is well settled that the Assistant Settlement Officer has no jurisdiction to record findings on question of title and the same can only be decided by a civil court of competent jurisdiction.
(d) The moot question which has to be decided is whether the story of settlement by Shibapada can be believed.
(e) In paragraph 3 of the plaint it was, inter alia, claimed by the plaintiff that the tenancy was duly recorded in the Revisional Settlement Khatian and Shibapada paid rent to his landlord even after vesting to the State and also obtained 'rent receipts' from the previous landlord and also from the State.
(f) In support of this story, the plaintiffs had filed several documents including the rent receipts. Exts. 2 to 2(a) of the R.S. Khatian Ext. 5 rent receipts Ext. 8 and 8(a) and also 9 and 9(a) and Amalnamas 12 and 12(a), and those documentary evidence having been filed by the plaintiffs in support of the case that it was Shibapada who took settlement of the suit tank from the previous landlord in 1358 B.S.
9. After coming to the aforesaid finding the lower appellate court had arrived at the conclusion that it would be risky for the lower appellate court to jump the conclusion that Shibapada took settlement of the suit tank from the previous landlord.
10. In my view, having arrived at the necessary finding about the grant of rent receipts by the State, the lower appellate court had failed to arrive at the necessary conclusion that the plaintiff was entitled to a decree for declaration in respect of the suit property.
11. In my view, the lower appellate court had also overlooked the observation of this Court in the case of Abdul Haque and Anr. v. State of West Bengal and Ors., , wherein D. N. Sinha, J. (as His Lordship then was) held that because of grant of rent receipt by the State, an independent tenancy right has been created in favour of the raiyat even after the order of vesting. In a subsequent case of Panchu Molla v. J.L.R.O. and Ors. reported in 1981(1) CHN at page 1, G.N. Ray, J. (as His Lordship then was) even without referring to the earlier judgment in the case of Abdul Haque (supra), took the similar view that if rent is accepted by the Junior Land Reforms Officer, some sort of independent tenancy right has been created, although a different view was sought to be taken by Mukul Gopal Mukherji, J. in the case of Sukumar Adhikary and Ors. v. State of West Bengal and Anr., .
12. All the aforesaid decisions were considered by me, in a subsequent judgment in the case of Murari Mohan Mondal v. State of West Bengal reported 1987 Calcutta High Court Notes 409.
13. In the said judgment this court considered in the earlier observations and held, inter alia, as follows :-
"The petitioners in all the cases, after the purchase of their respective lands by registered deeds between March 1962 and January 1985, paid rents to the State which were accepted by the local Tahashildars who granted rent receipts in their favour and they claimed to be tenants in respect of their lands. But the respondents distributed the lands so purchased by the petitioners by making settlements in favour of third parties treating the lands as 'vested lands'. The petitioners challenged the distribution of lands contending that they would not be evicted by this dubious method by treating the lands as 'vested lands'.
The writ petitioners cannot be dispossessed from the lands by treating the land as 'vested land' merely because no mutation has been made in favour of the petitioners. The respondents are permanently restrained from settling the lands in favour of third persons except in accordance with law."
14. In the case of Murari Mohan Mondal v. State of West Bengal (supra) this court has considered all the judgments from the case of Abdul Haque and Anr. upto the case of Sukumar Adhikary (supra) and came to the conclusion that the 'post vested transferee is entitled to notice as he has paid 'rent' to the State and the State Government is competent to treat the land as 'vested land' and to take possession without taking recourse to law, i.e., service of notice under Section 10(2) of the said Act of 1953.
15. In that view of the matter, the judgment passed by the lower appellate court is liable to be set aside and in my view the plaintiff is entitled to declaration of title in his favour in respect of the suit property as 'rent' once having been accepted the State Government cannot backtrack and treat the land as 'vested land', without taking recourse to law after serving notice under Section 10(2) of the said 1953 Act.
16. In the result, the appeal is entitled to succeed and is hereby allowed.
17. The judgments and decrees passed by both the courts below are set aside.
The plaintiff is entitled to the decree for declaration in respect of the suit property as claimed in the plaint.
In the circumstances of the case, there will be no order as to costs.