Calcutta High Court (Appellete Side)
Saffuddin Gazi vs Smt. Laxmi Mondal & Ors on 22 November, 2024
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4IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. 1451 of 1999
Saffuddin Gazi
Vs.
Smt. Laxmi Mondal & Ors.
For the petitioner :Mr. Susenjit Banik, Adv.
Mr. Mrinal Saha, Adv.
For the Opposite Parties :Mr. Rabindranath Mahato, Adv.
Mr. Aritra Shankar Ray, Adv.
Mr. Sandip Das, Adv.
Heard On :18.07.2024, 05.08.2024,
07.08.2024, 04.09.2024,
30.09.2024, 07.10.2024
Judgement On :22.11.2024
Bibhas Ranjan De, J. :
1. The instant revisional application is directed against the order dated April 22, 1999 passed by the Learned 14th Court of Additional District Judge at Alipore in Misc. Appeal No. 370 of 1997 thereby affirming the Judgement and Order dated January 22, 1997 passed by the Learned 2nd Court of Munsif, 2 Diamond Harbour in Misc. Case (Pre-emption) No.65 of 1984 wherein both the Ld. Courts below by the impugned judgement and orders, were pleased to dispose of the said pre- emption application thereby holding inter-alia that Manik Chandra Mondal (since deceased), i.e. the pre-emptor/opposite party being the adjoining land owner of the suit property, is entitled to get the order of pre- emption in connection with the said property.
2. Being aggrieved by and dissatisfied with the said order, the petitioners have preferred the instant revision application. Background:-
3. The suit property originally belonged to one Kumar Krishna Nandi Chowdhury. Narayan Chandra Baidya, the predecessor- in-interest of the vendor of the opposite party (since deceased) by a registered deed of patta dated May 8, 1943 registered on June 3, 1943 took settlement of different lands including suit dags from said Kumar Krishna Nandi Chowdhury. The said Narayan Chandra Baidya by a deed of gift dated December 25, 1967 gifted the 72 decimal of land comprised in the suit dags to his son Chittaranjan Baidya. The said 72 decimal of land was declared as vested to the State of West Bengal. However, the said Chittaranjan Baidya out of the said 72 decimal of land 3 sold 4 decimal to one Ahmed Ali and 6 decimal to the deceased Pre- emptor/Opposite party.
4. The legal heirs and representatives of Chittaranjan Baidya after his death, challenging the legality and propriety of the said order of vesting in respect of 62 decimal of land out of the said total 72 decimal of land comprised in the suit dags, filed a suit in the Learned Second Court of Munsiff at Diamond Harbour being Title Suit No.43 of 1983 against the State of West Bengal and others. The Pre- emptor/Opposite party was also a party/ defendant in the said suit. The Learned Second Court of Munsiff at Diamond Harbour by the Judgement and decree dated July 04. 1986 was pleased to declare the right, title and interest of the said legal heirs and representatives of said Chittaranjan Baidya in respect of said 62 decimal of land comprised in the aforesaid three Dag numbers.
5. Thereafter, Bibekananda Baidya and 7 others by executing a registered deed of sale executed on April 21, 1982 transferred the suit property in favour of Sarfuddin Gazi/petitioner. On March 31, 1984 Manik Chandra Mondal filed an application under Section 8 of the Land Reforms Act, 1956 being Misc. Case No. 65 of 1984 against Sarfuddin Gazi praying for preemption of the suit property on the ground that he is a co- 4 sharer of the holding and further he is owner of the adjacent land as the suit property is at the adjacent north of 6 decimals of land purchased by him by virtue of a registered deed of sale dated November 13, 1969.
6. Afterwards, the Learned Munsif, Second Court at Diamond Harbour by the judgement and order dated January 22, 1997 allowed the application for pre-emption by holding that the preemptor is the owner of the adjacent land of the suit property.
7. Being aggrieved, the pre-emptee filed an appeal being Misc. Appeal No. 370 of 1997 in the Court of Additional District Judge, Alipore (14th) which was dismissed and the judgement and order passed by the learned Munsif, 2nd Court at Diamond Harbour, in Misc. Case No. 65 of 1984 was affirmed. Argument Advanced:-
8. Ld. Counsel, Mr. Susenjit Banik, appearing on behalf of the petitioner has mainly contended that since the pre-emption proceeding was filed on 31.03.1984 praying for pre-emption of the deed dated 21.04.1982, the application is barred by limitation.
9. Mr. Banik has further contended that said Manik Chandra Mondal, the deceased pre-emptor/opposite party has 5 purchased the said 6 decimal of land by the impugned deed dated October 13, 1969 from said Chittaranjan Baidya, which was already vested to the State of West Bengal. Said Manik Chandra Mondal never took any initiative to challenge the said order disputing the said vesting nor his present legal heirs have produced any single document and/or paper to show that the said 6 decimal of land of their father, i.e. deceased Manik Chandra Mondal is not a vested land and/or the said land has never been vested to the State of West Bengal.
10. Before parting with, Mr. Banik further argued that it is admitted proposition of law that the right to pre-empt must exist not only at the time of sale of the land and the date of application but also to the time of the application being decided. The pre-emptor must continue to possess the right till the date of the decree, and if he loses that right before the decree being passed, the decree for pre-emption cannot be granted even though he may have such right on the date of making the application.
11. In this context he has referred to some judgments which are as follows:-
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Sk. Abdul Azis vs. Mst. Samidanessa Bibi reported in 1987 1 CaILJ 137 Niranjan Khana vs. Shyamal Kumar Mukherjee reported in 1988 93 Calwn 289 Bhagwan Das (dead) by his legal representatives and others vs. Chet Ram reported in 1971 0 AIR(SC)369 Amal Kumar Giri vs. Nani Gopal Paira reported in 2004 2 CalLJ 161
12. Per contra, Ld. Counsel, Mr. Rabindranath Mahato, appearing on behalf of the opposite parties has refuted the claim of the petitioners that the pre-emption application was not filed within the period of limitation. In this regard, he has referred to the paragraph no. 13 of the written statement where the pre-emptee admitted that the application was filed prior to completion of registration of the impugned deed dated 21.04.1982. Mr. Mahato has further stated that limitation relating to filing of pre-emption application starts from the date of completion of the registration of the deed in accordance with the provision of Section 61 of the Registration Act. Therefore, Mr. Mahato has tried to make this court understand that the 7 application for pre-emption is well within the period of limitation.
13. With regard to the claim of the petitioner that the land was vested to the State, Mr. Mahato has vociferously submitted that one Kumar Krishna Nandi Chawdhury executed a patta in favour of one Narayan Chanda Baidya and thereby transferred approximately 339 decimals of land and accordingly said Narayan Chanda Baidya had no land exceeding the ceiling limit. Thereafter, Narayan Chanda Baidya gifted 72 decimals of land in favour of Chittaranjan Baidya prior to August 7th,1969 and as such it cannot be said that the 72 decimals of land was vested into the State.
14. In this context, Mr. Mahato has referred to the Title Suit No. 43 of 1983 and argued that the right, title, interest and possession of the heirs and legal representatives of Chittaranjan Baidya was duly declared on the basis of a registered deed of gift dated 25.12.1967, which was executed by Narayan Chanda Baidya in favour of his son Chittaranjan Baidya in respect of 72 decimals of land. Therefore, the plea regarding Chittaranjan Baidya acquiring right, title, interest and possession in respect of 62 decimals of land only instead of 72 decimals of land has no merit.
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15. Finally, Mr. Mahato has stated that the petitioners could not produce any document to show that 6 decimals of land purchased by Manik Chandra Mondal on 13.10.1969 was vested into State of West Bengal and the pre-emptors are still in possession of the land in question and as a result the revision application is required to be outrightly dismissed.
16. In support of the aforesaid contentions, Mr. Mahato has relied on the following cases:-
Ramgati Khan vs. Gobinda Chandra Khan reported in 2005 SCC OnLine Cal 259 Goutam Das vs Nirbhoy Chandra Chowdhury & Ors. reported in 2006 SCC OnLine Cal 115 Ritashree Basu vs. State of West Bengal & Ors. reported in 2004 SCC OnLine Cal 494 Sambhunath Pal vs. State of West Bengal & Ors. reported in 1983 SCC OnLine Cal 47.
Analysis:-
17. Before exploring the contentious issue of this civil order, I offer to delineate a summary of evolution of land of West Bengal.
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18. According to permanent Settlement Regulation, 1973, Estates were settled with intermediaries or Zaminders for a more stable collection of revenue. The Raiyats did not have any statutory rights over the land they would cultivate, with no fixed rent system and also without any record maintained by the Govt. There was no protection of Raiyats against increasing burden of rent and also against autocracy of landlord or Zamindars.
19. To resolve the issue of autocracy, Bengal Tenancy Act 1885 was introduced. The rights of all classes of tenants and Raiyats were protected with provision for recording of their rights by introducing a regular rent structure and Mouza or village wise Record of Rights.
20. After independence, West Bengal Estate Acquisition Act, 1953(for short WBEA Act) was introduced wherein all rights and titles of intermediaries or Zamindars were abolished and all Raiyats were brought directly under the Govt. with fixed rent payable to the Govt. according to ceilings for different classes of land and ceiling excess land was vested to the State through Revised Record of Rights.
21. Thereafter, West Bengal Land Reforms Act, 1955(for short WBLR Act) was introduced wherein family was defined in 10 terms of Land Ceiling under WBEA Act. Rights of Bargadars/Bhagchasis or sharecroppers were recognized. By subsequent Amendments different classes of land and One- Man-One Khatian with updated land records (i.e. R.S.R.O.R) were introduced. Vested land at disposal of the State were distributed to such beneficiaries as Raiyats on certain conditions in terms of family and area of land.
22. And to add to that, West Bengal Acquisition of Homestead Land Act for Agricultural Labourers, Fishermen and Artisans, 1975 was introduced to legalize the occupations of those other Raiyats by homeless agricultural labourers, fishermen and artisans by preparing Record of Rights in terms of area of land.
23. In the case at hand following facts are admitted:
Entire Property belongs to one Kumar Krishana Nandi Chowdhury.
One Narayan Chandra Baidya took settlement of subject property by a registered patta. Said Narayan Chandra Baidya executed a deed of gift dated 25.12.1967 in favour of his son, 11 Chittaranjan Baidya in respect of 72 decimals of land.
Said Chittaranjan Baidya sold 4 decimals to one Ahamed Ali and 6 decimals to the Pre-emptor since deceased i.e. predecessor in interest of the opposite parties herein.
Right of Pre-emption claimed in the Misc. Case (Pre-emption) No. 65 of 1984 is only on the ground of "vicinity".
24. Contentious Issues:
- Whether the land alleged to have been owned and occupied by the pre-emptors/opposite parties herein, is vested to the State or not.
- If not so vested, whether the land held by the opposite parties is situated adjoining to the land held by the Petitioner/Pre-emptee or not.
Finding Issues:
25. Rule 14 E(1) of WBLR Rules envisages that Revenue Officer within whose jurisdiction the vested land or rights and interests in land or major portion thereof are situated, shall prepare an Assessment Roll in Form No. 14. Provided that 12 Assessment Roll for vested land shall not be prepared till possession of the same has been taken over by the Revenue Officer. As such, Tamilling the order of vesting passed in 14 T Cases in the R.O.R‟s and taking over possession are two essential requirements which should be completed before preparation of Assessment Roll. Therefore, regarding taking over possession, it may be ensured that order-sheet and writ of possession are invariably kept with case records wherefrom the factum of taking over possession can be satisfactorily proved.
26. In course of trial of the Misc. Case no. 65/1984, trial Court admitted the deed dated 13.10.1969 executed by Chittaranjan Baidya in favour of Manik Chandra Mondal, as exhibit-1. Considering the evidence on record including the admission of parties to the case with regard to right, title and interest of said Chittaranjan Baidya, Ld. Trial Court found Manik Chandra Mondal/Opposite Party herein to be contiguous land owner of the pre-empted land. That decision was affirmed by the Ld. Appellate Court in Misc. Appeal No. 370/1997. It is pertinent to mention here that none of the parties to the Misc. Case no. 65/1984 or Misc. Appeal No. 13 370/1997 raised any issue of vesting presumably due to Judgment in rem passed in Title Suit No. 43 of 1983.
27. Title Suit No. 43/1983 was brought by the legal heirs of Chittaranjan Baidya, since deceased, against the State, challenging the „vesting‟ of land which belonged to said Chittaranjan Baidya. Ld. Trial Judge recorded the following observation-
" Having gone through the documents exhibit-2, I find that at the time of R.S. recording Kumar Krishna Nandi had no title in the suit properties. As such, the entry in R.S. record of right in respect of suit land is erroneous. I also find that Chittaranjan had marketable title in the suit land by virtue of exhibit 3. In my opinion, the suit cannot be treated as vested land as the name of Chittranjan has been mutated and he paid rent of the suit properties. It appears from the evidence that after demise of Chittranjan the plaintiffs have been possessing the suit properties as his heir. There is nothing to show that the defendant/State taken possession over the suit land. As such, I find that the plaintiffs have right, title and possession over the suit properties.
Considering the fact, circumstances evidence, document on record and in view of my foregoing discussion I find that the plaintiffs have right, title, interest and possession over the suit properties and they are entitled to get decree as prayed for. As a result, all these issues are decided in favour of the plaintiffs.
Accordingly, the suit succeeds. The court fees paid, is correct. It is therefore.
Ordered That the suit be and the same is decreed on contest without costs against defendant no. 1 and exparte without costs 14 against the rest the right, title, interest and possession of the plaintiffs in respect of the suit properties be declared. The defendants are permanently restrained from interfering with the possession of the plaintiffs over the suit properties."
28. On careful perusal of entire judgment passed in Title Suit No. 43/1983, it has come to the notice of this Court that subject property belonged to one Kumar Krishana Nandi Chowdhury who executed a patta on 08.05.1943 in favour of Narayan Chandra Baidya who again, gifted 72 decimals of land to his son Chittaranjan Baidya who, in tern sold 6 decimals of land to the Opposite Party herein.
29. In the suit, on behalf of the State, it was pleaded that Kumar Krishna Nandi Chowdhury had land exceeding the ceiling limit and he died without retaining the suit property and therefore, the same was vested to the State. But on behalf of the State nothing was produced to prove the possession of the State over the land held by Chittaranjan Baidya. Ld. Judge also observed that Chittaranjan Baidya had marketable title in the suit land by virtue of exhibit 3 and his name was mutated and he also paid rents.
30. Aforesaid observation clearly shows that entire 72 decimals of land transferred by virtue of exhibit 3 was mutated in the name of Chittaranjan Baidya who paid rent also. 15 Therefore, entire 72 decimals of land cannot be said to have been vested to the State in absence of any document in support of taking possession by the State complying the procedure as per provisions of WBLR Rules.
31. Therefore, drawing up a decree in the Title Suit No.43/1983 to the extent of 62 decimals of land out of 96 decimals does not necessarily mean that 10 decimals of land out of 72 decimals of land held by Chittaranjan Baidya was vested to the State.
32. Nothing has been pleaded on behalf of the petitioner that the judgment passed in Title Suit No. 43/1983 was ever assailed before any higher forum. In the result, the decision of the Court passed in Title Suit No. 43/1983 is Judgment in rem which established status of the property in dispute against everyone and not only against the parties to the suit.
33. Above all, issue of vesting of land which was not raised either in the trial of Misc. Case No. 65/1984 or in the Misc. Appeal No. 370/1997 in my humble view, cannot be raised in the revision application in the High Court.
34. As a sequel, this Court finds no scope to interfere with the impugned order passed in Misc. Appeal No. 370 of 1997. 16
35. Therefore, the Civil Order being no. 1451 of 1999 be and same is dismissed without costs.
36. Connected applications, if there be, also stand disposed of accordingly.
37. All parties to this revisional application shall act on the server copy of this order duly downloaded from the official website of this Court.
38. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
[BIBHAS RANJAN DE, J.]