Ashutosh Ghosh @ Ashok Ghosh and Others vs Prabir Sarkar and Others

Prasenjit Mandal, J.—This second appeal is at the instance of the defendants/appellants herein and is directed against the judgment and decree dated August 31, 2007 passed by the learned Additional District Judge, 1st Court, Howrah in Title Appeal No. 1 of 2007 thereby affirming the judgment and decree dated November 30, 2006 passed by the learned Civil Judge (Junior Division), 6th Court, Howrah in Title Suit No. 101 of 2005. The original plaintiff, Smt. Sovona Sarkar filed a title suit being Title Suit No. 101 of 2005 for declaration of title, permanent injunction and other reliefs.

The defendants are contesting the said suit by filing a written statement denying the material allegations raised in the plaint and he has submitted that he is a tenant in respect of the Schedule ''B'' property and has made construction on the Schedule ''C'' property as described in the schedule to the plaint. The suit property as described in Schedule ''A'' to the plaint is of intermediary status and as such, the same has been vested in the State and so, from the date of vesting, the tenant became a direct tenant under the State and as such, the plaintiff has no right, title and interest over the suit property. The L.R. record of rights has been prepared in the name of the defendants and they have paid rents and taxes to the Municipality. They obtained a sanctioned plan for making construction on the Schedule ''C'' property. Since vesting the plaintiff has no right, title and interest in the suit property. She cannot get any relief as sought for in the plaint and as such, the suit should be dismissed.

The learned Trial Judge upon analysis of the evidence adduced by the parties has held that the plaintiff has been able to prove the plaint case and accordingly, he has decreed the suit on contests without costs. He has declared that the plaintiffs are the absolute owners in respect of the Schedule ''A'' property.

At the same time, he has passed the orders of permanent injunction restraining the defendants from changing the nature and character of the suit property by way of construction.

Being aggrieved, the defendants preferred an appeal being Title Appeal No. 1 of 2007 and while disposing the said appeal, the learned First Appellate Court has observed that he did not find any illegality in the judgment of the learned Trial Judge. The judgment is a well-reasoned one and there is no scope of interference. Accordingly, the first appeal preferred by the defendants has been dismissed on contests. The judgment and decree passed by the learned Trial Judge has been affirmed.

Being aggrieved by such judgment and decree of the learned First Appellate Court, this second appeal has been preferred by the defendants/appellants.

At the time of admission of the appeal, the following substantial questions of law have been framed for decision in this second appeal:-

I. Whether the learned First Appellate Court committed substantial error of law in affirming the judgment of the learned Court below in spite of holding on the basis of Exhibit-1 that Gopi Kanta Ghosh, predecessor of the appellants herein was a tenant?

II. Whether the learned Courts below committed substantial error of law in not holding that the suit is hit by the principles of res judicata?

Upon hearing the learned Counsel for the parties and on going through the materials on record, it appears that the entire suit property as described in Schedule ''A'' to the plaint was originally described as of intermediary status in the C.S. record and it belonged to three brothers, namely, Bibhuti Bhusan Chakraborty, Bholanath Chakraborty and Asutosh Chakraborty having total land of 52 decimals. One of the brothers, namely, Bibhuti Bhusan had sold about 5 cottahs of land to one Krishna Chandra Ghosh in 1944 and from him Smt. Sovona Sarkar, mother of the plaintiff had purchased the Schedule ''A'' property by a registered deed of sale dated March 12, 1980 from the heirs of Krishna Chandra Ghosh by Exhibit No. 1. Thus, I find that Krishna Chandra Ghosh purchased the property before the enactment of the West Bengal Estates Acquisition Act, 1953. After purchase of the suit property, the plaintiff made mutation in her name vide Exhibit No. 2. The deed of purchase Exhibit No. 1 lays down that the defendant is possessing a portion of the suit property as a tenant and this portion has been described in Schedule ''B'' which is a part of the Schedule ''A'' property to the plaint.

So far as the Schedule ''C'' property is concerned, it is also a part of the Schedule ''A'' property and it is contended by the plaintiff that the defendant is trying to make construction over this Schedule ''A'' property.

So far as the vesting is concerned, according to the provisions of Section 4 of the West Bengal Estates Acquisition Act, 1953, the properties of an intermediary shall vest in the State on or before the 1st day of Baisak 1362 B.S. Accordingly, the R.S. records of right had been prepared.

The defendant has contended that the Schedule ''A'' property had been vested to the State and as such, he is a direct tenant under the State. Though the defendant has contended such a plea, the R.S. records of right showing vesting of the suit property in the State had not been produced by him. Although he has produced the L.R. records of rights, khajna paid to the Government, the mutation certificate, etc. during 1987, but, the defendant has not filed any paper relating to payment of rent to the Government being a direct tenant under the State as contended during the lifetime of Gopinath Ghosh @ Khagendra Nath Ghosh. There is no dispute that the suit property is of bastu quality which is non-agricultural land and so, according to the provisions of Section 6 of the West Bengal Estates Acquisition Act, an intermediary is entitled to retain such land of homestead. There is no doubt that the defendant was inducted as a non-agricultural tenant in respect of the Schedule ''B'' property and Smt. Sovona Sarkar took steps for eviction of the tenant under the law of the land. But, after her death, her sons did not take the necessary steps and as such, the said suit for eviction was dismissed for default.

Mr. S.P. Roychowdhury, learned Senior Advocate appearing for the appellants has contended that there is no proof that the intermediary had retained the land u/s 6(1a) to 6(1c) of the 1953 Act and as such, the said land had vested in the State free from all incumbrances as per provisions of Section 4 of the 1953 Act and so, the plaintiff cannot have any right, title and interest over the suit property.

Mr. Roychowdhury has also contended that as the defendants are the recorded tenants, they are making construction upon obtaining sanction from the concerned municipality and they are paying the taxes to the municipality for that reason and as such, the tenancy right of the defendants cannot be ignored at all.

Mr. Roychowdhury has also argued that while disposing of the first appeal, the learned First Appellate Court has not practically assigned any reason. He has simply recorded the fact of the case, the submissions advanced by the learned Advocates of both the sides and ultimately, he has concluded that the judgment passed by the learned Trial Judge is a well-reasoned one and the learned Trial Judge has decreed the suit on the basis of oral and documentary evidence. So, he did not find any illegality in the judgment of the learned First Appellate Court.

Thus, referring to the provisions of Order 41 Rule 31 of the C.P.C., he has contended that the said judgment of the learned First Appellate Court has not been made in conformity with Order 41 Rule 31 of the C.P.C. No reasons have been ascribed in support of the judgment and so, the judgments of both the Courts below should be set aside.

By referring the decision of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., Mr. Roychowdhury has contended that while disposing of the first appeal, the learned First Appellate Court must record findings and reasons and without doing so if any judgment is passed, the said judgment is not sustainable.

Mr. Roychowdhury has also contended that since the plaintiff has contended that the defendant had made an encroachment in respect of the Schedule ''C'' property which is a part of Schedule ''A'' property unless a decree of recovery of possession is sought for in the suit, according to the provisions of Section 34 of the Specific Relief Act, the suit is not maintainable and for that reason, the judgment and decree passed by both the Courts below should be set aside.

On the other hand, Mr. Haradhan Banerjee, learned Advocate appearing for the respondents has contended that, from the materials on record, the vendor''s title of Smt. Sovona Sarkar has been proved. Since the land is of bastu quality according to the provisions of Section 6(1)(a) to (c) of the 1953 Act, the intermediary is entitled to retain such land including the suit property which is of bastu quality and thus, he has relied on the unreported decision in S.A. No. 543-544 of 1971. Thus, he has contended that when the land with structure is the subject matter of retention, an intermediary can retain without any ceiling.

He has also contended that since the defendant/appellant was a tenant in respect of the Schedule ''B'' property, an allegation of encroachment of Schedule ''C'' property has been made. Suit in the present form is quite maintainable.

He has also contended that since the judgment of the learned First Appellate Court was of affirmation, reasons in details are not required. The decision referred to Mr. Roychowdhury is relied to a judgment of reversal and in case of reversal, there must be clear findings and reasons in support of the order of reversal. So, the decision referred to by Mr. Roychowdhury will not be applicable.

He has also contended that since the transferee is in possession by purchase, the property being in the nature of bastu, the plaintiff is not required to file a Form ''B'' to retain the suit property and in support of his submission, he has relied upon certain decisions referred to by him. Thus, he has contended that the concurrent findings should not be interfered with.

Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that both the Courts below have come to the concurrent findings and the learned First Appellate Court has supported the findings and reasons of the learned Trial Judge and he has supported the observation of the learned Trial Judge that the plaintiffs are the absolute owners in respect of Schedule ''A'' property. Accordingly, the order of permanent injunction has been granted as a consequential relief. In the instant case, since the R.S. record has not been produced by the defendant, it cannot be understood whether any proceeding u/s 44(2a) of the 1953 Act was adopted for correction of the record of rights. There is no evidence on behalf of the defendant that the State had taken possession under the provisions of Section 10(2) of the 1953 Act and as such, it cannot be held that the possession had been delivered by the plaintiff to the other party.

So far as the possession of the defendant is concerned, this is after all a possession by a tenant. Since vesting has not been proved, the defendant should be treated as a tenant under the plaintiff and appropriate legal steps may be taken by the landlord as was done previously by Smt. Sovona Sarkar. Since the property relates to bastu under the above circumstances, an intermediary can retain the suit property without any ceiling limit and the retention under such circumstances will be automatic from the date of vesting. In support of such contention, I have considered the decision of The State of West Bengal and Others Vs. Star Iron Works Ltd. and Others,

In that view of the matter, I am of the opinion that the concurrent findings arrived at by the Courts below cannot be said to be perverse and that there is no scope of interference with the impugned order. There is no substantial error of law. In arriving at a conclusion by the learned First Appellate Court, though the learned First Appellate Court did not discuss the matter in details, however, the judgment cannot be said to be perverse at all. The suit cannot be stated to barred by the principles of res judicata as the earlier suit for eviction was dismissed for default and not on merits. There is no substantial error of law in the impugned judgment and decree.

Accordingly, in my view, this second appeal is devoid of merits and is, therefore, dismissed.

Considering the circumstances, there will be no order to as costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.