Anantalal Pramanick vs Soumendra Mohan Sarkar and Others

Amitabha Dutta, J.—This is an appeal by the plaintiff from a judgment of reversal in a suit for declaration of title, recovery of possession and mesne profits. The facts which are not in dispute are these. The defendants held the suit land in plot Nos. 87 and 114 of mouja Kalikapur as under raiyats and they settled such land with the plaintiff for four years from Baisakh 1360 B. S. to Chaitra 1363 B.S. at an annual rent of Rs. 41]- by accepting a registered kabuliyat dated 27th Chaitra 1359 B. S. (10.4.1953). According to the said kabulyat the temporary settlement was taken by the plaintiff for the purpose of cultivating the underlying vacant land of the garden in the suit plots measuring 2.73 acre and the plaintiff had no right to the timber or fruits of the trees therein.

The plaintiff''s case is that while he was in possession of the suit land by cultivation the superior interest of the defendants vested in the State of West, Bengal on 1st Baisakh 1363 B. S. under the provisions of the West Bengal Estares Acquisition Act 1953, that he continued 10 possess the suit land after expiry of the term of the registered kabulyat as a tenant under the State and paid rent to the State that the defendants wrongfully dispossessed the plaintiff from the suit land by cutting chaitali paddy crop grown by the plaintiff on 19th Chaitra 1366 B. S. and that the plaintiff instituted Title Suit No. 114 of 1960 u/s 9 of the Specific Relief Act for recovery of possession of the suit land but it was dismissed,

3.The defendants pleaded in the written statement, inter alia, that the defendants took possession of the suit land in Baisakh 1364 B. S. after the expiry of the term of the registered lease in favour'' of the plaintiff, that the plaintiff never possessed the suit land after Chaitra 1363 B. S. that the suit land did not vest in the State and has been retained by the defendants who have been in possession of the suit land by cultivation through different cultivators and on payment of rent to the State and municipal taxes as the suit land constitutes a holding within Berhampur Municipality.

The Court of first instance after considering the materials on record fully accepted the plaintiff''s case and decreed the suit. The Court of appeal below has found that after the provisions of Chapter VI of the West Bengal Estates Acquisition Act (hereinafter called the Act) came into force on 10.41956 and the provisions of Chapters II, III, V and VII of the Act became applicable to raiyats and under raiyats, the plaintiff became a raiyat directly under the State on the same terms and conditions as mentioned in the registered kabulyat dated 10.4.53 (Ext. J). It is further founa that the state Government was competent to lease the suit land to the derendants on the expiry of the term of tilts said registered kabuliyet from Baisakh 1364 B.S. by acceptance of rent ana that the plaintiff give up possession of the suit land after Chaitra 1363 B.S. and the defendants entered into possession of such land in 1364 B.S. as a tenant under the State Government on payment of rent. In that view the learned District Judge has reversed the decision or the learned munsif and dismissed the suit.

Before this Court the learned advocate for the appellant has submitted that the court or appeal below has erred in its (sic) that the State Government created a new tenancy in favour of the detendants from Baisakh 1364 B.S. by accepting rent from them, because no such case has been pleaded in the written statement and secondry because the State Government could not legally settle the suit land with the defendants after the plaintiff became a raiyat under the State of 1st Baisakh 1363 B.S. and in fact no such settlement was granted to the defendants. On the other hand it has been submitted on behalf of the respondents that as the suit land is non-agricultural land and the defendants'' tenancy in the suit land has been a non-agricultural tenancy, the superior interest of the defendants who were not intermediaries did not vest in the State and so on the expiry of the term of the registered kabulyat the defendants legally took possession of the suit land in Baishkh 1364 B.S. and has been possessing such land since then on payment of rent to the State. In this connection reference has been made to the entry in the R.S. record (Ext. 2) describing the plain an as " (I)" or non-agricuitural tenant. thus it appears that the learned advocate for the derendants-respondents has built his argument on facts not pleaded anywhere in the written statement.

In my view, the submissions made by the learned advocate by the appellant are well rounded and should prevant. it appears from the pleadings and evidence that the detendants held the suit land as korta tenants as part of a (sic) nothing under the raiyati jote or the Sinha landlords recorded in (sic) NO. 446 of mouja Kalikapur (vide Ext. F). The defendants granted (sic) of the suit land which was a garden with fruit bearing and other trees to the plaintiff by accepting the registered kabuhyat dated 27th Chaitra (sic) B.S., corresponding to 10th April 1953 (Ext. J) for four years from Baisakh 1360 B.S. to Chaitra 1363 B.S for the purpose of cultivation of the underlying vacant land of the garden. It appears that inspite of the trees, a substantial part of the garden could be used for agricultural purpose. It is not desputed that the plaintiff possessed the suit land during those four years by using it for growing Aush paddy, Jute, Chaitali paddy and other crops. So on 1st Baisakh 1363 B.S. which is the date of vesting of the intermediary rights of raiyats and under raiyats the suit land was agricultural land as defined in clause (b) of Section 2 of the Act, under which the user of the land determines its character. It is nowhere pleaded in the written statement that the suit land was non-agricultural land on the date of vesting or that the defendants held the suit land as non-agricultural tenants. (sic) the derendants were recorded as korta tenants ana not dakhatkar in respect or the suit land when they settled such land with the plaintiff. the whole tenor of the written statement is that the detendants as korta tenants retained the suit land alter getting khas possession oh expiry of the temporary settlement for four years granded to the plaintiff. the mere fact that the suit land was situated within municipal area or that it was a garden with trees is not sufficient to make it a non-agricultural land. In the R.S. record (Ext. 2) the suit land has been recorded in the name of the plaintiff as meadikorfa with reference to the meadi kabuiyat dated 10.4.53 and it is also mentioned that the tenancy will continue to be held under the State. But it is further noted there that the plaintiff is non-agricultural tenant under rule 4. In my view, there is absolutely no foundation for the entry that the plaintiff was non-agricultural tenant and it is also inconsistent with the other entries in the said R.S. records. Thus the entry describing a status of the plaintiff as non-agricultural tenant in the R. S. record is patently erroneous So, the contention of the learned advocate for the respondents with reference to the decision of the Supreme Court in the case of Shibsankar Nandy Vs. Prabartak Sangha and Others, that a non-agricultural tenant of whatever degree would be excepted from the definition of the intermediary in section 2(i) of the Act cannot prevail, as it has no foundation in the pleadings and cannot be rested on the wrong entry in the R.S. record that the plainiff was a non-agricultural tenant under the detendants.

the position, therefore, is that the plaintiff Was an under raiyat in Khas possession or tne suit land as agricultural land on 1st Bisakh 1363 B.S. which is the date of vesting of the intermediary interest of the raiyats and uncter raiyats deemed as intermediaries tinder the operation of Section 52 of the Act. The plaintiff is entitled to retain the suit land u/s 4A(1) of the West Bengal Estates Acquisition Rules and hold such land on the terms and conditions referred to in Rule 4(3) of the said Rules. He is not required to exercise choice of retention if the area held by him does not exceed the ceiling limit. The court of appeal below is not correct in holding that the plaintiff held the suit land after the date of vesting on the terms and conditions mentioned in the registered kabuliyat of 10.4.53 (Ext. J) as this finding is contrary to Section 6(2) of the Act which provides that an intermediary who is entitled to retain possession of any land under sub-section (1) shall be deemed to hold such land directly under the State from the date of vesting as a tenant subject to such terms and conditions as may be prescribed and subject to payment of such rent as may be determined under the provisions of the Act. Rule 4(3) prescribes the terms and conditions. The finding of the court of appeal below that the State Government was in position to settle the suit land with the defendants by acceptance of rent on the expiry of the term of the said kabulyat. that is to say from 1st Baisakh 1364 B.S. is also incorrect. The State Government is competent to settle only those agricultural lands which vested in tne state ana that too, after taxing possession thereof u/s 10 of the Act ana such settlement must be made in accoraance witn the provisions or Section 49(1) or the West bengal land Reforms Act and Rule 20 (A) or the West Bengal land Reforms Rules 1965. in the instant case the Government Tahasildar accepted rents from and granted da-khilas ''without prejudice" to both parties. The dakhilas granted to the defendants do not and cannot constitute acceptable evidence of grant of settlement of the suit land by the State Government to the defendants. It may be mentioned also that ''B'' form submitted by the defendants to retain the suit land was not accepted by the Revenue Officer.

The court of appeal below cannot make a new case. Nor can such a case be supported in second appeal by reasoning on assumption of facts not averred in the pleadings.

It must, therefore, be held that the plaintiff has title to the suit land as a raiyat under the State. The final court of facts has held that the defendants took possession of the suit land in Baisakh 1364 B.S. So, the plaintiff has been kept out of possession of the suit land since then. The plaintiff having brought the present suit on 23.4.1962 within time is entitled to recover possession of the suit land from the defendants. The plaintiff has claimed mesne profits from 2.4.1960 and the trial court has decreed the same. In my view, the suit has been rightly decreed by the court of first instance and the judgment of reversal rendered by the court of appeal below cannot be sustained. The appeal is allowed. The judgment and decree of the court of appeal below are set aside and those of the trial court are restored. No order is made as to costs.