Calcutta High Court (Appellete Side)
Sri. Ananda Ghosh vs Smt. Ranu Bala Ghosh on 1 September, 2011
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice :- Tapan Kumar Dutt
S.A. 113 of 2006
With
S.A.344 of 2003.
SRI. ANANDA GHOSH
- Versus -
SMT. RANU BALA GHOSH.
Mr. Sudhis Dasgupta Sr. Advocate
Mr. Sibasish Ghosh,
Mr. Bijendra Kumar Jha.
.... For the Appellant
Mr. S.P Roy Chowdhury Sr. Advocate,
Mrs. Sanghamitra Nandy.
.... For the Respondent
Heard on: 01.12.2010, 10.02.2011, 18.02.2011, 10.03.2011, 18.03.2011, 25.03.2011.
Judgment on: 01.09.2011.
Tapan Kumar Dutt, J:
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This Court has heard the learned Advocates for both the parties. The two second appeals arise out of two title appeals which were heard analogously by the learned Lower Appellate Court. The two title appeals arose out of two title suits which were heard analogously by the learned Trial Court. The present second appeals have also been heard analogously.
The respondent filed T.S. 407 of 1992 against the appellant. The respondent's case was that the four sons of Nagendra Nath Ghosh (respondent's father-in-law) by a deed of gift dated 21.9.1985 gifted the suit property to the respondent and thus the respondent acquired right, title and interest in the suit property (land measuring 2 cottahs at Dum Dum Cossipur Road, P.S. Dum Dum, District North 24-Parganas, Mouza East Sinthi, Khatian No. 477 Dag No. 1020, Khatian No. 480 Dag No. 1021 within South Dum Dum Municipality, P.S. Dum Dum, District North 24-Paraganas). According to the respondent, the appellant purchased the land adjoining to the aforesaid suit property from one Saktipada Ghosh. The respondent's case is that the aforesaid suit property was settled by the zamindars in favour of Nagendra Nath Ghosh in 1925. But, a dispute cropped up owing to an erroneous recording in the C.S. record-of-right in respect of the said suit property and Nagendra filed T.S. 309 of 1956 (renumbered as T.S. 103 of 1960) against Saktipada Ghosh praying for recovery of possession along with other reliefs. Such suit was decreed and was affirmed up to the High Court and the decree is under execution. The appellant being the purchaser of the 3 adjacent land intended to have a building plan sanctioned claiming the suit land to be his property. Accordingly, the respondent filed T.S. 407 of 1992 praying for declaration that the appellant has no right to make any construction on the suit land and he has no right to enter into the suit land. The respondent also prayed for permanent injunction.
The appellant contested the said suit by filing written statement denying the material allegations made in the plaint of the said suit and contended, inter alia, that he became the owner of more or less 4 cottahs 15 chittaks of land in Dag No. 1021 Khatian No. 480 after purchasing the same from the said Saktipada Ghosh in the year 1965 and that the respondent has no property in Dag No. 1020 and 1021. The further case of the appellant is that his property is in Dag No. 1021 and that he is in no way concerned with plot No. 1020. The appellant's case is that the said Nagendra obtained the decree in the aforesaid T.S. 309 of 1956 (103 of 1960) by suppressing the fact that the said Saktipada obtained a decree in T.S. 153 of 1959. The appellant contended that he was not a party in the said suit brought by Nagendra and the decree passed in such suit is not binding upon him and the respondent's said suit should be dismissed.
The appellant filed T.S. 270 of 1993 against the respondent praying for a declaration that the decree passed in T.S. 153 of 1959 in favour of Saktipada Ghosh, the predecessor-in-title of the appellant, and thereafter confirmed in title appeal No. 433 of 1960 and also in second appeal No. 1489 of 1961 is valid and binding upon the respondent, and the decree passed in the said T.S. 103 of 1960 is not binding upon the appellant. The appellant prayed for permanent injunction 4 restraining the respondent from dispossessing the appellant from the 'B' schedule property (as described in plaint of T.S. 270 of 1993) i.e. land with structures comprised in an area of 2 cottahs 8 chittaks in Municipal Holding No. 412 A/1, premises No. 172, Dum Dum Road, P.S. Dum Dum, Calcutta - 700074.
The appellant's case is that one Monoranjan Ghosh was the recorded owner of the said Dag No. 1021 and on his death his son Saktipada Ghosh became the absolute owner of the said property. Appellant's further case is that as the said Saktipada's right, title and interest in the said property became clouded and he filed T.S. 153 of 1959 against Sadhu Charan Saha and others which was decreed in favour of Saktipada and such decree was upheld upto the High Court in second appeal. During the pendency of such second appeal the appellant purchased the entire 'A' schedule property (described in the plaint of T.S. 270 of 1993 i.e. land measuring .0819 acre or 4 cottahs 15 chittaks being C.S. plot No. 1021 recorded in C.S. Khatian No. 480 and R.S. plot No. 1021 recorded in R.S. Khatian No. 480 at Mouza Purba Sinthee, P.S. Dum Dum, District 24-Paraganas appertaining to Municipal Holding No. 412 A/1 and premises No. 172, Dum Dum Road, under Touzi No. 1298/2833 Dihi Panchanangram) from the said Saktipada Ghosh by two registered deeds of conveyance on 18.5.1965 and 6.12.1965 and got his name mutated in the municipal records. The appellant further pleaded that out of the aforesaid 'A' schedule property the appellant transferred 2 cottahs 8 Chittaks of land to one Mahananda Ghosh who built a two-storied pucca building on such land; the appellant is now owning and possessing the aforesaid 'B' schedule property. 5
According to the appellant, the said Nagendra Nath Ghosh filed the said T.S. 103 of 1960 in respect of the self-same property against one Dhirendra Nath Ghosh and Saktipada Ghosh and obtained a decree of declaration and khas possession in respect of the aforesaid 'A' schedule property by suppressing the fact that earlier a decree was passed in favour of Saktipada Ghosh in T.S. 153 of 1959 and the appeal against such decree was dismissed for default. The appellant alleged that the decree passed in the said T.S. 103 of 1960 is not binding upon the appellant.
The respondent filed a written statement with a counter-claim in T.S. 270 of 1993 denying the material allegations made in the plaint of the said suit and contended that the said Nagendra Nath took settlement of 4 cottahs 8 chittaks of land from the estate of Kanailal Seth by a registered kabuliyat dated 15.12.1925. The respondent prayed for dismissal of T.S. 270 of 1993 with a declaration that the judgment and decree passed in T.S. 153 of 1959, T.A. 433 of 1960 and S.A. 1489 of 1961 are collusive and not binding upon the respondent as well as the scheduled property and also for mandatory injunction directing the appellant to remove all pegs and obstruction from the scheduled property.
The aforesaid two suits, T.S. 407 of 1992 and T.S. 270 of 1993 were tried analogously by the learned Civil Judge (Junior Division), 3rd, Court Sealdah. The said learned Trial Court by judgment and decree dated 08.01.2000 decreed the said T.S. 407 of 1992 and dismissed the said T.S. 270 of 1993 and declared that appellant has no right, title and interest over the suit property and that the 6 judgment and decree passed in T.S. 153 of 1959 is not binding upon the respondent.
The appellant filed T.A. No. 24 of 2000 and T.A. 25 of 2000 against the judgment and decree passed in T.S. No. 407 of 1992 and T.S. 270 of 1993 and the learned Additional District Judge, 1st Court, Barasat, North-24Parganas by judgment and decree dated 14.03.2002 allowed the T.A. 24 of 2000 and set aside the judgment and decree passed in T.S. 407 of 1992. The learned Lower Appellate Court dismissed T.A. 25 of 2000 and affirmed the judgment and decree passed in T.S. 270 of 1993 and also the respondent's counter-claim in T.S. 270 of 1993. The learned Lower Appellate Court declared that the judgment and decree passed in T.S. 153 of 1959 is not binding upon the respondent.
The learned Lower Appellate Court recorded the fact that the appellant has stated that the said Nagendra Nath Ghosh had filed T.S. 309 of 1956 (T.S. 103 of 1960) in respect of the self-same property against one Dhirendra Nath Ghosh and Saktipada Ghosh and obtained a decree for declaration and khas possession but such decree was obtained by suppressing the decree passed in favour of Saktipada.
It appears that it was argued on behalf of the appellant in the Lower Appellate Court that the Kabuliyat dated 15.12.1925 being an unilateral document is inoperative as a lease under Section 107 of the Transfer of Property Act and accordingly the judgment passed in T.S. 103 of 1960 on the basis of such kabuliyat in void and a nullity as the Court had no jurisdiction to pass such judgment. Relying on the ratio of the decision reported at AIR 1954 SC 340 7 the Lower Appellate Court held that the appellant did not suffer any prejudice as his predecessor-in-interest contested the said T.S. 103 of 1960. The learned Lower Appellate Court found that the judgment in T.S. 103 of 1960 was passed on 30.07.1962 and even if the Court in T.S. 103 of 1960 failed to take notice that the unilateral kabuliyat dated 15.12.1925 was hit by Section 107 of the Transfer of Property Act but decreed the suit the fact remained that neither Saktipada Ghosh, one of the defendants in T.S. 103 of 1960 and predecessor-in-interest of the appellant, nor any of Saktipada's successor-in-interest had taken any appropriate step to get the error, if any, in T.S. 103 of 1960 corrected. The learned Lower Appellate Court further held that as per Article 59 of the Limitation Act there was only 3 years time from the date of the said decree to get it cancelled but no step has been taken in this regard, and the decree passed in T.S. 103 of 1960 is not a nullity.
It appears that the appellant had raised a dispute with regard to the identity of the suit property (in T.S. 497/1992) before the learned Lower Appellate Court but the said learned Court found that the certified copy of the execution application (Ext.4) filed in Title Execution case No. 33 of 1970 in which the appellant is a party has been filed and in the schedule of the said application the suit property of T.S. 103 of 1960 has been fully described by boundaries. The learned Lower Appellate Court held that it cannot be held that the suit property of T.S. 407 of 1992 is vague.
It appears that on behalf of the appellant it was argued before the learned Lower Appellate Court that the reliefs claimed by the respondent in T.S. 407 of 8 1992 have already been decided in T.S. 103 of 1960 and as such the T.S. 407 of 1992 is hit by resjudicata. The learned Lower appellate Court found that the result of T.S. 153 of 1959 cannot operate as resjudicata in respect of T.S. 407 of 1992 as neither the respondent nor her predecessor-in-interest was a party in T.S. 153 of 1959 but the decision in T.S. 103 of 1960 operates as resjudicata to the T.S. 407 of 1992. The learned Lower Appellate Court found that the appellant is not entitled to any declaration or order of injunction prayed for by him and the learned Trial Court rightly dismissed T.S. 270 of 1993 and allowed the counter- claim of the respondent. The learned Lower Appellate Court was of the view that the decision in T.S. 103 of 1960 operates as resjudicata to T.S. 407 of 1992 and, accordingly, it set aside the judgment and decree passed in T.S. 407 of 1992 and allowed the T.A. 24 of 2000. The said learned Court affirmed the judgment and decree passed in T.S. 270 of 1993 and dismissed the T.A. 25 of 2000. The said learned Court also found that the judgment and decree passed in T.S. 153 of 1959 is not binding upon the respondent.
The learned Counsel for the appellant submitted that the said Nagendra Nath had lost his possession in the property in dispute on 24.10.1954 and he referred to a copy of the judgment passed in the aforesaid T.S. 103 of 1960 where the said Nagendra Nath's case was recorded by the learned Court. It appears that the said Nagendra Nath's case in the said suit was that the said Saktipada in collusion with one Dhirendra Nath Ghosh dispossessed the said Nagendra Nath on 24.10.1954 but till such dispossession Nagendra Nath was in possession of the property in dispute. A copy of such judgment is included in the thicker paper 9 book. The said learned Counsel referred to Section 6 of the West Bengal Estate Acquisition Act which deals with the right of intermediary to retain such lands. According to the said learned Counsel, the land concerned had vested in the State free from all encumbrances and as such the respondent and/or her predecessor could not have retained the right to take possession of such land and the only relief that such person could claim is the compensation amount. The said learned Counsel submitted that since admittedly Nagendra Nath was dispossessed from the property on 24.10.1954 he lost his right to retain possession of the land under the law.
The said learned Counsel referred to Section 2(7) of the West Bengal Land Reforms Act which defines the word "land". He has also referred to the provisions of Section 3 and 3A of the West Bengal Land Reforms Act, 1955 which are quoted below:
"3. Act to override other laws - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom or usage or contract, express or implied, or agreement or decree or order or decision or award of a court, tribunal or other authority.
3A. Rights of non-agricultural tenants and under-tenants in non- agricultural land to vest in the State - (1) The rights and interests of all non-agricultural tenants and under-tenants under the West Bengal Non- Agricultural Tenancy Act, 1949 (West Ben. Act XX of 1949) shall vest in the State free from all encumbrances, and the provisions of Sections 5 and 5A 10 of the West Bengal Estates Acquisition Act, 1953 (West Ben. Act I of 1954) shall apply, with such modifications as may be necessary, mutatis mutandis to all such non-agricultural tenants and under-tenants as if such non- agricultural tenants and under-tenants were intermediaries and the land held by them were estates and a person holding under a non-agricultural tenant or under-tenant were a raiyat.
Explanation - Nothing in Sections 5 and 5A of the West Bengal Estates Acquisition Act, 1953 shall be construed to affect in any way the vesting of the rights and interests of a non-agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949 in the State under sub- section (1) of this Section.
(2) Notwithstanding, anything contained in sub-section (1), a non-
agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949 (West Ben. Act XX of 1949), holding in his khas possession any land to which the provisions of sub-section (1) apply, shall, subject to the other provisions of this Act, be entitled to retain as a raiyat the said land which together with other lands, if any, held by him shall not exceed the ceiling area under Section 14M.
(3) Every intermediary -
(a) whose land held in his khas possession has vested in the State under sub-section (1), or
(b) whose estates or interests, other than land held in his khas possession, have vested in the State under sub-section (1), shall be 11 entitled to receive an amount to be determined in accordance with the provisions of section 14V.
(4) The provisions of this section shall not apply to any land which the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (West Ben. Act XXXII of 2001), apply. (5) This section shall be deemed to have come into force on and from the 9th day of September, 1980."
He submitted that since the said Nagendra Nath was not in khas possession of the disputed property, the property vested in the State and the respondent is not entitled to any relief.
He referred to a judgment reported at 1976(2) SCC 152 (Gurucharan Singh -V- Kamla Singh & Others) and referred to Paragraph 11 of the said reports wherein the Hon'ble Court was pleased to observe that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced. He submitted that since the point raised by him with regard to vesting is a pure question of law the appellant is entitled to raise such point in this second appeal even if it has not been agitated in the learned Courts below. He also referred to Paragraph 21 of the said reports wherein the Hon'ble Court was pleased to observe that khas possession is actual possession. Reference was also made to paragraph 23 of the said reports wherein the Hon'ble Court was pleased to observe that the plaintiff 12 in the said reports had no khas possession of the suit lands and cannot use Section 6 of the Bihar Land Reforms Act, 1950 as a rescue raft. It appears that the Hon'ble Court had the occasion to consider some of the provisions of the Bihar Land Reforms Act, 1950 in the said reports.
The said learned Advocate referred to AIR 1962 Supreme Court 1230 (Haji Sk. Subhan, -V- Madhoo) and relied upon the observations of the Hon'ble Court in Paragraph 18 of the said reports in support of his contention that a Court will refuse to execute a decree which might have been passed in ignorance of a statute whereunder a person's right may vest in the State when such person is not in physical possession of the property concerned. It appears that in the said reports the Hon'ble Court had the occasion to consider some of the provisions of M.P. Abolition of Proprietary Right (Estates, Mahals and Alienated Lands) Act, 1950. Paragraph 18 of the said reports is quoted below:
"18. The provisions of Cl.(e) of Sub S. (1) of S.4 indicate that certain decrees against the interest of the proprietor become inexecutable on the vesting of his rights in the State. There is therefore good reason to hold that decrees in his favour also become inexecutable if they are based on his proprietary right which he possesses no more and which has vested in the State."
The learned Counsel for the appellant cited a decision reported at ILR 1969(2) Calcutta 315 (Ratindra Nath Pal -V- Subodh Gopal Bose). Paragraph 6 of the said reports is quoted below:
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"6. In this case, Ram Ran Bijai Singh V. Behari Singh (3), it was held that the right to possession cannot be equated with that khas possession or, in other words, it was held by Their Lordships that that 'Equation' of the right to possession with khas possession is not justified on principle or authority. Mr. Gupta, however, wanted to distinguish the case on the ground that the judgment in respect of the interpretation of Bihar Land Reforms Act, and in the Bihar Land Reforms Act khas possession is defined in S.2(K) of the said Act, but in the West Bengal Estate Acquisition Act khas possession has not been defined at all and, as such, the said case cannot be treated as an authority. It appears that in s. 2(K) of the Bengal Land Reforms Act khas possession is defined to mean actual possession of the properties though that definition is wanting in the West Bengal Estates Acquisition Act, still it cannot be doubted on reading other provisions of s. 6 that khas possession can only mean actual physical possession of the intermediary in order that he may exercise option to retain the lands under s.6 of the West Bengal Estates Acquisition Act. In the decision in Haji Sk. Subhan -V- Madhorao (5), it was held that after the vesting the proprietor's right vested in the State and as a consequence thereof the proprietor's right under a decree to obtain possession is lost, as such right follows from the recognition of the proprietor's right of possession over the land, and once that right is lost, the proprietor cannot obtain possession thereof. In the case of 14 Raja Sailendra Narayan Bhanj Deo V. Kumar Jagat Kishore Prasad Naraayan Singh (4) it was also held that after the vesting of the estate in the State Government, free from all encumbrances, a decree for redemption of mortgage becomes infructuous on the ground that after the vesting of the estate in the State khas possession cannot be obtained from the mortgagee and mortgagor ceases to be entitled to the property. He and the mortgagor has no right to redeem it. In the case of Suraj Ahir V. Prithinath Singh (6) it was also held by the Supreme Court that the proprietor after the vesting of the estate had no subsisting right to recover possession and that right vested in the State. On the basis of aforesaid decisions I cannot but hold that after the vesting of the estate, under the West Bengal Estates Acquisition Act, in the State, the plaintiff intermediary's suit for recovery of possession is not maintainable and must be dismissed."
In paragraph 11 of the said reports it was observed that " to attract the provisions of Cl. (C) of S. 7(1) of the Act, the non-agricultural land must be in the actual khas possession of the intermediary on the date of vesting."
The said learned Counsel cited another decision reported at 1993(II) CHN 9 (Kanailal Das -V- Khagesh Chandra Chakraborty & Ors.). In the said reports the Hon'ble Court had the occasion to consider Section 3A of the West Bengal Land Reforms Act (as amended in 1986). The Hon'ble Court was pleased to hold that after vesting of the estate in the State on 15 09.09.1980, the decree obtained by the plaintiffs in the said case had been rendered unexecutable. It appears from the facts of the said case that the decree-holder had lost his right to retain the land because it was not in his khas possession on the date that is 09.09.1980 when Section 3A came into force (as amended in 1986).
The said learned Counsel cited a decision reported at 1983(2) CHN 98:
1983(1) CLJ 340 (Benode Behari Ghosal -V- Shew Kamal Singh & Ors.) in support of his contention that since Nagendra Nath was not in khas possession of the suit property at the material point of time, the land concerned had vested in the State free from all encumbrances and the respondent and/or her predecessor could not have retained the right to claim recovery of possession of land. According to the learned Counsel Nagendra Nath had lost his right to retain possession of the land concerned under the law.
He cited another decision reported at 1973(3) SCC 585 (M/S. Tirath Ram Rajindra Nath, Lucknow -V- State of U.P. & Another) while making his submissions on Sections 3 and 3A of the West Bengal Land Reforms Act, 1955. He emphasized that the non-obstante provision in Section 3 of the West Bengal Land Reforms Act, 1955 which provides that the provisions of the said Act shall have the effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom or usage or contract, express or implied, or agreement or decree or order or decision or award of a Court, Tribunal or other authority. His submission was that the provisions of Section 3A shall operate notwithstanding the decree which Nagendra Nath had obtained in T.S. 16 103 of 1960. In the said reports the Hon'ble Court was also pleased to consider a non-obstante provision and the effect of such non-obstante provision. The said learned Counsel submitted that reading Section 3A of the said Act of 1955 it will be clear that Nagendra Nath having lost his possession in the suit property in October 1954 the property in question had vested in the State and consequently Nagendra Nath has lost his right to claim recovery of possession of such property and/or to retain such property.
According to the said learned Advocate for the appellant, the respondent does not have any right to claim any relief and the appellant's suit should have been decreed in favour of the appellant.
The learned Counsel for the respondent (Ranu Bala Ghosh) submitted that the appellant cannot be permitted at this stage in this appeal to raise the question of vesting of the estate and it is not open to the appellant to challenge the decree passed in T.S. 103 of 1960 on 30.07.1962. According to the said learned Counsel such decree stands and it cannot be challenged in the present proceedings. According to the said learned Counsel, the said plot Nos. 1020 and 1021 are lands belonging to non-agricultural tenants and not intermediaries; it does not vest within the purview of the West Bengal Estates Acquisition Act. The said learned Counsel submitted that the point of alleged vesting in the State was not taken in the suit filed by the appellant and for the first time such point cannot be agitated in the present second appeal. He further submitted that the appellant did not challenge the decree passed in Title Suit No. 103 of 1960 before the institution of the Title Suit No. 270 of 1993 and such decree passed in T.S. 17 103 of 1960 stands. He referred to provisions of Section 5(1) (d) of the West Bengal Estates Acquisition Act, 1953 and also to Section 6 of the said Act of 1953 in support of his contention that the said Ranu Bala Ghosh is a non-agricultural tenant and she could not have been affected adversely under the said Act. The said learned Counsel referred to Rule 4 of the West Bengal Estates Acquisition Rules, 1954 wherein it has been stated that any land retained by an intermediary under the provisions of Section 6(1) shall, subject to the provisions of the Act, be held by such intermediary from the date of vesting on certain terms and conditions specified in the said rules.
The said learned Counsel for the respondent submitted that the Section 3A of the West Bengal Land Reforms Act, came into effect in the year 1980 but the judgment in T.S. 103 of 1960 was passed on 30.07.1962 and, therefore, the question of vesting of non-agricultural land did not arise when the said judgment in T.S. 103 of 1960 was passed. He submitted that in any event the judgment/decree passed in T.S. 103 of 1960 has attained finality and such judgment has not been upset by any superior Court. He also submitted that Ranu Bala and/or her predecessor was not a party in the said T.S. 153 of 1959 and, therefore, the judgment and decree passed in the said T.S. 153 of 1959 is not binding on Ranu Bala and/or her predecessor.
He cited a decision reported at AIR 1967 Supreme Court 940 (Shibsankar Nandy -V- Prabartak Sangha & Others). He relied upon observation of the Hon'ble Court in Paragraph 9 of the said reports wherein the Hon'ble Court was pleased to observe that the first respondent in the said case being itself a non- 18 agricultural tenant in respect of the entire land including the land which was in dispute in the said case does not fall within the definition of 'intermediary' as defined in Section 2(1) (I) of the West Bengal Estates Acquisition Act, 1953. The Hon'ble Court was further pleased to observe that not being thus an intermediary it is impossible to say that its interests in the land in dispute vested in the State or that therefore it was not entitled to apply under Section 24 of the Non- Agricultural Tenancy Act.
The learned Counsel for the respondent cited a decision reported at 1996(2) CHN 212 (Paschimbanga Bhumijibi Krishak Samiti & Ors. -V- State of West Bengal & Ors.) and referred to Paragraph 104 of the said reports wherein the Hon'ble Court was pleased to observe that there cannot be any doubt that the legislature has the power to validate a legislation and give retrospective effect thereto but such power has some limitations inasmuch as while doing so the legislature cannot just set aside a judgment as thereby it would usurp the judicial function. The Hon'ble Court was further pleased to observe that a judgment can be invalidated by a Legislative Act only when the lacunae in the Act pointed out in the judgment are rectified.
The said learned Counsel cited a decision reported at 70CWN 652 (Tara Prasad Mukherjee & Ors. -V- Ganesh Chandra Mondal & Ors.) and referred to Paragraph 40 of the said reports. Paragraph 40 of the said reports is quoted below:
"40. My conclusion is that the words "in khas possession" in section 6(1) (d) of the West Bengal Estates Acquisition Act qualify the word "retention". In 19 other words, that expression means that the intermediary can only retain in his khas possession but cannot otherwise retain through tenant or intermediary. It does not mean that the intermediary must actually be in khas possession or in actual physical possession at the date of vesting of the estate in the Government. It is only after the estate had vested in the Government that the right of retention really arises. Before the Act it was legally permissible and not punishable in any way to have all the lands let out by an intermediary and to earn the rent thereon. After the Act no doubt the effect is that all such estates vested in the Government. The intermediaries as rentiers lost their character. But then this Act itself gives a right to retain certain lands. It is that right to retain which is contained in section 6 of the statute. I do not find any warrant in the statute that this right to retain the minimum land was intended to be confiscated by the State if at the date of vesting the agricultural land was not in khas possession or in actual physical possession of the intermediary. The intermediary in such a case should in my view be left free with the right to retain which the statute has given him and claim to keep in his khas possession the minimum land permitted by the statute. To deny such intermediaries this minimum right would be to create inequality among two classes of intermediaries, namely, one who had not parted with their khas possession at the date of vesting and the other who had parted with khas possession before the date of vesting. I cannot find any express or implicit intention the statute to deprive any class of intermediary of their right to 20 retain the minimum land permissible under the statute on that ground. It is open to the intermediary to say that now that the Act has come into force and all the estates have vested in the Government I shall retain the minimum land in my khas possession and if there be tenants or other occupiers of those lands I shall make them khas in order to be able to retain it under the right which the statute now gives. The word is "entitled". That means a right to make it khas."
The said learned Counsel cited another decision reported at 2009(4) SCC 453 (State of West Bengal & Others -V- Ratnagiri Engineering Private Limited & Others) and referred to Paragraph 7 to 11 of the said reports wherein the Hon'ble Court was pleased to consider the provisions of Section 6 of the said Act of 1953 and find that there is a difference between Clauses (a) to (e) of Section 6(1) on the one hand, and Clause (f) and (g) of Section 6 (1) on the other. The Hon'ble Court was pleased to hold that while in case of lands which can be retained under Clause (a) to (e) of Section 6(1) the retention is automatic from the date of vesting and no order of any authority need be passed for that purpose. In the case of Clauses (f) and (g) of Section 6(1) the retention after the date of vesting is not automatic, but it is only when the State Government passes an order under Section 6(3) of the said 1953 Act. The Hon'ble Court was further pleased to observe that the proviso to Section 6(3) gives the power to the State Government after reviewing the circumstances of the case to revise an order passed under Section 6(3) after giving opportunity of hearing to the intermediary or lessee. 21
The said learned Counsel cited a decision reported at 2003(9) SCC 253 (W.B Govt.Employees (Food & Supplies) coop. Housing Society Ltd. & Others -V- Sulekha Pal (Dey) (Smt) & Others) and referred to Paragraph 13 of the said reports in which discussion has been made with regard to the decision reported at 70 CWN 652. However, Paragraphs 19 and 20 of the said reports should also be noted. The said Paragraphs 19 and 20 of the said reports are quoted below:
"19. The claims and contentions on behalf of the parties on either side have to be adjudged in the light of the abovenoticed principles laid down in interpreting the relevant provisions of the Act, particularly Sections 4,5,6 and 10 thereof. The governing principles and the scheme underlying the provisions of the Act as enunciated by the Calcutta High Court, in the earlier decisions noticed supra cannot be said to lay down any wrong or incorrect proposition of law or anything in derogation of the interpretation placed by this Court as to the scope, extent and nature of vesting as well as the nature and character of rights safeguarded under Section 6 etc. for retention of the land and other properties by the intermediary and their successors-in-interest. On a careful reading of the above-referred-to decisions portions of which have been brought to our notice and extracted above with emphasis laid in support of the respective stands taken for the parties on either side, we are also of the view that the right of the intermediaries to retain certain lands and properties under Section 6 does not come to an end once and for all or said to become extinct, irretrievably after the prescribed date as envisaged in Section 6(5) read with Rule 4-A of 22 the Rules. Without leaving anything for anyone to surmise as an aftermath of such omission or lapse, the legislature itself stipulated as to what should happen thereafter also in the latter part of sub-section (5) of Section 6 that if no choice is exercised under Section 6(1) by the intermediary during the prescribed period also obligating the Revenue Officer to give the intermediary an opportunity being heard, allow him to retain so much of the lands as do not exceed the limits specified in clauses (c) , (d) and (j) of sub-section (1) of Section 6 of the Act.
20. The right of the Collector to take charge of the estate and rights therein of intermediaries, which vest in the State under Section 5 are dealt with under Section 10 of the Act. While sub-section (2) of Section 10 lays down the procedure to be followed and stipulates the manner and method in which the possession has to be taken, sub-section (5) declares in clear and unmistakable terms that nothing in the said section shall authorize the Collector to take khas possession of any estate or of any right of an intermediary therein which "may" be retained under Section 6 and the embargo is not merely with reference to those properties already chosen to be retained as envisaged under sub-sections (1) and (5) of Section 6. Before taking possession, sub-section (2) of Section 10 mandates the Collector to serve a written order in the prescribed manner requiring the intermediary or any other person in khas or symbolic possession, by the date to be specified in the order which shall not be earlier than sixty days from the date of its service, to give up such possession and all documents, registers, 23 records and collection papers connected with the management of such estate/interest. Rule 7 of the Rules prescribes the statutory form (No.3) of order/notice and provides that the order of the Collector and the statement shall be in the said form or in a form substantially similar thereto. The Collector has to by his order essentially call upon the intermediary/person concerned, among other things, to furnish a statement in the format prescribed, as part of Form 3 itself and particularly in clause 5(iii) (C) of the statement to disclose the description and area of land which the intermediary would like to retain under the provision of the Act. This, in our view, inevitably postulates and leads only to the inescapable conclusion that even before the Collector actually takes khas possession of the estate and rights of an intermediary therein, the intermediary will have not only an opportunity but a right to choose the lands which he could retain as provided for under sub-section(1) of Section 6 of the Act. That such understanding and construction of the relevant provision alone would be proper and necessary to be adopted gets reinforced from sub-section (6) of Section 10 which stipulates that if after vesting takes place under Section 5 and the intermediary or any other person possesses any land which was in the khas possession of the intermediary before vesting, but which the intermediary "has not retained or cannot retain under Section 6", then whether possession of such land has been taken by the Collector in pursuance of sub-section (2) or not the intermediary or such other person 24 shall be liable for the period for which he is in possession of such land to make payments determined in the manner enumerated therein."
The said learned Counsel cited another decision reported at AIR 1964 SC 907 ( Ittyavira Mathai -V- Varkey & Another). From paragraph 8 of the said reports it appears that a point was raised that the decree passed in a suit was a nullity since the suit was barred by time. The Hon'ble Court was pleased to hold that even assuming that the suit was barred by time it is difficult to appreciate the argument that the decree can be treated as a nullity and ignored in subsequent litigation. The Hon'ble Court held that "if the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well-settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue is in the suit, it cannot be said that it has acted beyond its jurisdiction. As has after been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities." While considering a decision reported at AIR 1935 PC.85 the Hon'ble Court was pleased to observe that all that the said decision says is that Section 3 of the Limitation Act is peremptory and that it is the dusty of the to take notice of this 25 provision and give effect to it even though the point of limitation is not referred to the pleadings but the Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. The Hon'ble Court was pleased to observe that if the Court fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code and if the party does not take appropriate steps to have the error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.
The said learned Counsel cited another decision reported at AIR 1966 SC 1061 (State of West Bengal -V- Hemant Kumar Bhattacharjee) wherein it was observed in paragraph 14 of the said reports that a wrong decision by a Court having jurisdiction is an much binding between the parties as a right one and may be superseded only by appears to higher tribunals or other procedure like review which the law provides.
The said learned Counsel cited another decision reported at AIR 1952 SC 23 (Ram Kumar Das -V- Jagdish Chandra Deo) wherein it appears that the defendant in the said case executed a registered kabuliyat dated 8.12.1924 in favour of the Receiver who was in charge of the plaintiff's estate by which he purported to take settlement of a land for 10 years at an annual rent. The payments of annual rent were made and the kabuliyat not being an operative document under Section 107 of the Transfer of Property Act, the question was whether the tenancy created by implication of law was a monthly tenancy under Section 106 of the Transfer of Property Act. It was held by the Hon'ble Court that 26 the tenancy created by law in favour of the defendant not being for agricultural or manufacturing purposes should be held to be from month to month since its inception under Section 106 of the Transfer of Property Act, unless there was a contract to the contrary.
It appears from the submissions made by the learned Advocate for the appellant that much emphasis was given on the point that since the said Nagendra Nath was not in khas possession of the suit property such property had vested in the State of West Bengal and after such vesting Nagendra Nath lost the right to recover possession of such property and/or to retain such property and, consequently, the respondent has also has no right to recover possession of the suit property and she has also lost the right to retain the possession of the suit property. It is true that a pure question of law going to the root of the case can be taken even in a second appeal but the question as to whether or not the suit property or any part thereof had vested in the State is not purely a question of law. In Gurucharan Singh's case (supra) the Hon'ble Court approved the view that a pure question of law going to the root of the case and based on "undisputed or proven facts" could be raised even before the Court of the last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced. In the present case, the allegation of vesting of the said Nagendra Nath's right and/or title and/or interest in the suit property in the State was not even alleged in the pleadings filed by the appellant and such point of alleged vesting was not at all agitated in any of the Courts below. No evidence was led with regard to the allegation of vesting. When the point of vesting was raised for 27 the first time in this second appeal such question was seriously opposed on behalf of the respondent. Thus, it cannot be said that the point of vesting raised in the second appeal is a pure question of law based on "undisputed or proven facts". If the appellant is permitted for the first time in this second appeal to take the point of vesting definitely the respondent would be taken by surprise and would also be unfairly prejudiced. This Court is unable to accept the submission of the appellant's learned Advocate that the point of vesting is a pure question of law which can be decided in the second appeal for the first time.
The learned Advocate for the appellant referred to the judgment in Haji Sk. Subhan's case (supra) in support of his contention that a Court will refuse to execute a decree which might have been passed in ignorance of a statute wherein a person's right may vest in the State when such person is not in physical possession of the property concerned. This Court is of the view that the said reports cannot be of any assistance to the appellant since this Court cannot come to a finding that the right and/or title and/or interest of the said Nagendra Nath had vested in the State. It is true that in Ratindra Nath Pal's case (supra) it was held that the khas possession can only mean actual physical possession of the intermediary in order that he may exercise option to retain the lands under Section 6 of the said Act of 1953 and that after vesting of the estate under the said Act of 1953 in the State the intermediary's suit for recovery of possession is not maintainable, but, as indicated earlier, in the present case, it has not been proved (not even alleged by the appellant in his pleadings) that the suit property had vested in the State.
28
It is true that the learned Counsel for the appellant had relied upon the provisions of Sections 3 and 3A of the West Bengal Land Reforms Act, as already noted above, but, as submitted by the learned Advocate for the respondent, the said Section 3A came into effect from sometime in 1980 and the judgment in the said T.S. 103 of 1960 was passed in 1962. According to the learned Advocate for the respondent, the judgment in T.S. 103 of 1960 had attained finality. It would be proper to take note of the observations of the Hon'ble Supreme Court in the State of W.B. Govt. Employees (Food & Supplies) Coop. Housing Society's case while considering the provision of Sections 5,6 and 10 of the said Act of 1953 to the effect that even before the Collector actually takes khas possession of the Estate and rights of intermediary therein, the intermediary will have not only an opportunity but a right to choose the lands which he could retain as provided for under sub-Section 1 of Section 6 of the Act. In the said reports the Hon'ble Court was pleased to observe that the right of intermediaries to retain certain lands and properties under Section 6 does not come to an end once for all or said to become extinct irretrievably after the prescribed date as envisaged in Section 6(5) read with Rule 4-A of the Rules. In the said reports the Hon'ble Court was further pleased to observe that even before the Collector actually takes khas possession of the Estate and rights of an intermediary therein, the intermediary will have not only an opportunity but a right to choose the lands which he could retain as provided for under Section 6 (1) of the said Act of 1953.
In Ratnagiri Engineering Private Limited's case (supra) the Hon'ble Supreme Court was pleased to observe while considering the provisions of 29 Section 6(3) of the said Act of 1953 that the proviso to Section 6(3) gives the power to the State Government after reviewing the circumstances of the case to revise an order passed under Section 6(3) after giving opportunity of hearing to the intermediary or lessee. From the reported decisions discussed above it will appear that the point of vesting cannot be decided in the second appeal as a pure question of law when there is nothing on record with regard to such point of vesting raised on behalf of the appellant.
Reference was made by the learned Advocate for the appellant to the said Tirath Ram Rajendra's case (supra) as noted above but we find that in the instant case the judgment in the said T.S. 103 of 1960 was delivered in 1962 and Section 3A of the West Bengal Land Reforms Act, 1955 has been made effective from 09.091980. In Paschimbanga Bhumijibi Krishak Samiti's case (supra) the Hon'ble Court was pleased to observe that the legislature has the power to validate a legislation and give retrospective effect thereto but such power has some limitations inasmuch as while doing so the legislature cannot just set aside a judgment as thereby it would usurp the judicial function. The Hon'ble Court was further pleased to observe that a judgment can be invalidated by a Legislative Act only when the lacunae in the Act pointed out in the judgment are rectified. That apart, the decision reported in Ittyavira Mathai's case (supra) the Hon'ble Court held that even if the suit was barred by time and yet the Court decreed it, the Court would be committing an illegality and the aggrieved party would be entitled to have the decree set aside by preferring an appeal but it is 30 well-settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrongly and that even though it decided wrongly it would not be doing something which it had no jurisdiction to do. The Hon'ble Court was further pleased to observe that when the Court has jurisdiction over the subject-matter and the parties but decides an issue erroneously it cannot be said that it had acted beyond its jurisdiction. The relevant portion of the said reports has already been discussed above and it will appear that in the instant case even if it is assumed for the sake of argument only that the judgment in the said T.S. 103 of 1960 was an illegal one, the aggrieved party could have taken steps as envisaged in the Civil Procedure Code for setting aside such judgment and decree but not having done so such judgment and decree passed in T.S. 103 of 1960 has attained finality. It cannot be said that the said judgment and decree is a nullity. Even if it is assumed for the sake of argument only that the decree passed in the said T.S. 103 of 1960 is erroneous, such erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. The decision rendered in Haji Sk. Subhan's case (supra) cannot be of any assistance to the appellant in the facts and circumstances of the instant case. It cannot be said simply because Nagendra Nath had stated in the said T.S. 103 of 1960 that he was dispossessed of 24.10.1954, the right and/or title and/or interest of the said Nagendra Nath had vested in the State without any further evidence on record. In Shibsankar Nandy's case (supra) the Hon'ble Court was pleased to observe that the first respondent in the said case being itself a non-agricultural tenant in respect of 31 the entire land including the land in dispute does not fall within the definition of intermediary and not being thus an intermediary it is impossible to say that its interests in the land in dispute vested in the State. There is no dispute that neither the present respondent nor her predecessor-in-interest were parties in the said T.S. 153 of 1959 and thus, the judgment and decree passed in the said T.S. 153 of 1959 cannot be binding on the present respondent.
In view of the discussions made above, this Court does not find any merit in both the second appeals and, accordingly, both the second appeals being S.A. No.344 of 2003 and S.A. No. 113 of 2006 stand dismissed. The impugned judgments and decrees passed by the learned Lower Appellate Court in the aforesaid title appeal Nos. 24 of 2000 and 25 of 2000 are affirmed.
There will, however, be no order as to costs.
Urgent Xerox Certified copy of this Judgment, if applied for, be given to the parties on compliance all necessary formalities.
Let a copy of this judgment be also kept in the file of S.A. 344 of 2003.
(TAPAN KUMAR DUTT J.)