Kalipada Tribedi vs State of West Bengal

Subhro Kamal Mukherjee, J.—This is an Plaintiff''s second appeal against a judgment of affirmance in a suit for declaration of title and for premanent injunction.

The suit property originally belong to Plaintiff''s grandfather and after the death of the said grandfather property devolved upon the father of the Plaintiff, Purna Chandra Tribedi. Purna Chandra Tribedi during his life time settled ''kha'' schedule land in favour of the Mangilal Mundra, the proforma Defendant No. 3, in 1947 corresponding to 1353.B.S. The said Puma Chandra tribedi died in the year 1951 and upon his death his properties including suit properties devolved, upon his two sons, Kalipada, the Plaintiff, and Shyamapada, the proforma Defendant No. 2. By. a document dated September 12, 1954, the ancestal properties were distributed between the two brothers by way of partition by metes and bounds and the suit properties described in ''ka'' schedule and tenanted properties, namely, ''kha'' schedule properties fell to the share of the Plaintiff. A proceeding purportedly u/s 5A of the West Bengal Estates Acquisition Act, 1953 was started and the Revenue Officer accepted that the settlement with the proforma Defendant No. 3 was bonafided, but held that the property was settled during the mischief period as when the draft record of right was prepared the name of the lessor was mentioned and only at the attestation stage the name of Mangilai Mundra, the proforma Defendant No. 3, was inserted. The order of the Revenue Officer has been exhibited as exhibits B and B1. In view of the findings in 5A Case Revenue Officer by Order No. 4 dated November 17, 1969, in B.R. Case No. 159 of 1969-70 ordered for deducting 12.40 acres of khas Bold form the retained land of the Plaintiff. Consequently, ''ka'' schedule land of 12.40 acres were allegedly treated as vested. An application under Article 226 of the Constitution of India was moved by the, Plaintiff when this Hon''ble Court issued a Rule, but ultimately on August 25, 1975, discharged the Rule, inter alia, with the observations that the said order of discharge of the Rule was without prejudiced to the right of the Plaintiff to agitate the questions involved in the said writ petition before any other forum. However, this Court directed the status quo as on August 25, 1975 should be maintained for a period of four months:

In the aforesaid background, on December 23, 1975, the present Title Suit No. 240 of 1975 was ins-. tituted in the court of the learned Munsif, First Court at Jangipur, District, Murshidabad for declaration of the Plaintiff''s title and for premanent injunction.

The principal Defendant No. 1, the State of West Bengal contested the said suit by filing a written statement contending, inter alia, the proceedings u/s 5A and u/s 6(1) of the West Bengal Estates Acquisition Act, 1953 were disposed on serving notices upon the Plaintiff and the order that has been passed by the Revenue Officer in B.R. case was valid one and is binding on the Plaintiff. It was contended that the suit is hit by the provisions of Section 57-B of the West Bengal Estate Acquisition Act, 1953. It was, further, alleged that the suit is hit by Section 34 of the Specific Relief Act, 1963 as the State took over possession of the disputed property and distributed the same to the landless persons by granting pattas on September 20, 1975. Therefore, the suit was liable to be dismissed as the Plaintiff had neither the title nor the possession in respect of the suit properties.

It is pertinent to mention that this Court on August 25, 1975 directed the parties to maintain status quo as on August 25, 1975, for a period of four months in the writ proceeding initiated by the Plaintiff and the said order was passed in presence of the learned Advocate for the State. Nevertheless, it was contended in the written statement that the pattas have been granted on September 20, 1975 to the alleged landless persons, that is, those pattas were granted in defiance of the order of status quo granted by this Court, as aforesaid:

By judgment and decree dated September 27, 1997, the learned Munsif dismissed the suit on contest with cost against the contesting Defendant No. 1 and ex-parte without cost as against the rest. The learned Munsif held that the suit is hit by Section 57-B of the West Bengal Estates Acquisition Act. However, the learned Munsif held with regard to the issue as to whether the suit is hit by Section 34 of the Specific Relief Act, 1963 as under:

Issue No. 4:

It appears from order dt. 15.8.76 of the Hon''ble High Court in the C.R. No. 2559 (W) of 1969 that the said rule was discharged and it was ordered therein that status quo as on today shall be maintained for 4 months. But it appears from order No. 1 dt. 13.9.75 in settlement case No. 31/XII of 1975/76 (Ext. C) that most of the ka schedule vested lands were settled with different reiyats. Accordingly, some pattas dt. 20.9.75 as appears in that record, wered granted by the state Govt. The position, therefore is that the state Govt, have already settled some of the plots of the vested Ka schedule land with different raiyats under the state. In that event the plff. can not be said to have continued his possession in these plots. As the plff. did not pray for recovery of possession of these plots, the suit must be considered to have been hit by Section 34 of the S.R. Act. Hence issue No. 4 is also answered in the affirmative and decided against the plff.

The Plaintiff filed an appeal in the Gourt of the learned District Judge, Murshidabad being Title Appeal No. 28 of 1977 and eventually, the appeal was transferred to the court of the learned Additional District Judge, Third Court at Berhampore, District: Murshidabad and the learned Additional District Judge dismissed the appeal. The learned Additional District Judge, also, held that the suit was barred under the provisions of Section 57B2(c) of the said West Bengal Estates Acquisition Act, 1953.

However, the courts below did not avert in to the merits of the case as to whether the settlement was made in favour of the proforma Defendant No. 3 by the father of the Plaintiff in 1947 or made between may 5, 1953 and the date of vesting under the West Bengal Estate Acquisition Act, 1953 as the courts below were of the opinion that as the suit was hit u/s 57-B of the said Act, the Plaintiff was not entitled to any relief in the present suit.

Shri Sudhis Dasgupta, learned Senior Advocate, appearing on behalf of the Appellants, argued, inter alia, that the courts below completely mis-directed themselves in deciding this case and that the learned Judge in the lower appellate court erroneously formulated the point for determination of appeal while the learned Judge observed that the only point that required determination in this appeal was whether the order of vesting of the suit land passed in B.R Case No. 159 of 1969-70 is hit by Section 57-B of the West Bengal Estates Acquisition Act, 1953. Mr. Dasgupta, further, argued that this is a suit for declaration of title and for permanent injunction and consequently Section 57-B has no application. Mr. Dasgupta strenuously argued that in view of the admitted position that the pattas have been granted during the subsistence of an order of status quo passed by this, court and in defiance of the said restraint order, the patta holders can not claim any right under the said pattas as it is to be treated that such alienations have not taken place at all. Mr. Dasgupta in support of his contention cited the case of Surjit Singh and Ors. V. Harbhan Singh and Ors. (1995) S.C.C. 50 to challenge the findings of the courts below that the suit is hit by Section 34 of the Specific Relief Act. Mr. Dasgupta, also, referred to the case of Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others, , the case of Sudhabodh Misra v. State of West Bengal (1978) 1 C.L.J. 336 and the case of Ayubali Sardar and am. v. Derajuddin Mallick (1975)2 C.L.J. 305 in order to contend that Section 57-B of the said Act does not bar the jurisdiction of the Civil Court completely, but in a suit where the court is not called upon, either expressly or by necessary implication, to determine any question as to whether the Plaintiff would be entitled to retain or to not retain the land in suit, though if the decree be in favour of the Plaintiff, the land being declared his, he may retain it, such a suit is maintainable. The fact that the decree may in its ultimate analysis have its baring on the Plaintiff''s right to retain by itself would hot bring the suit within the mischief of the provision of Section 57-B of the said Act.

None appears on behalf of the State at the hearing of the appeal.

In my considered opinion the following substantial questions of law are involved in the present second appeal:

(a) Whether the learned Judges in the courts below, in the facts and circumstances of the case, substantially erred in law in proceeding erroneously on the basis that the suit is hit by Section 57-B of the West Bengal Estates Acquisition Act, 1953?

(b) Whether the courts below substantially erred in law in failing,to appreciate that the provision u/s 5A of the West Bengal Estates Acquisition Act, 1953. has not conferred with exclusive jurisdiction to the Revenue Officer to determine as to when the settlement was given and the civil court has jurisdiction to go to such question and such determination is not barred u/s 57-B of the West Bengal Estates Acquisition Act, 1953?

(c) Whether the courts below substantially erred in law in dismissing the suit as barred under s.34 of the Specific Relief Act, 1963 when the possession has been taken by the State admittedly during subsistence of an order of stuatus quo passed by this Court in a proceeding under Article 226 of the Constitution of India where the Petitioner and the State were parties?

The Supreme Court in the case of Kitikara Chintamoni Dora and Ors. v. Guatreddi Annamanaidu (supra) while considering similar provisions in Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 held that the jurisdiction of the Settlement Officer is not final or conclusive it being a finding of a jurisdictional fact and when it is held that determination of such facts is not a matter of the exclusive jurisdiction of the Settlement Officer, the Plaintiff can not be debar on the basis of any doctrine of res judicate from getting the matter fully and finally adjudicated by a civil court of competent jurisdiction.

this Court, also, considered the scope of Section 57 B of the West Bengal Estates Acquisition Act, 1953 in various decisions some of the cases are Ramkrishna Mullickv. State of West Bengal (1975) 1 C.L.J. 154 Ayubali Sardar and Anr. v. Derajuddin Mallick (supra) Sudhabodh Misra v. State of West Bengal (supra) and Chaturbhuj Mishra v. State of West Bengal 82 C.W.N. 589. The aforesaid decisions have laid down the principles that Section 57B(2) put an embargo on a civil court from entertaining and adjudicating any matter coming under Clauses (a), (b) and (c) of the Sub-section (2) of Section 57B of the said Act. Section 57B of the said Act does not bar the jurisdiction of the Civil Court completely. However, the said Section merely ousts the jurisdictional of the civil court to entertain certain classes of suits, but it does not debar the civil court from entertaining suits relating to matters not specified in sub-s.(1) as well as in Clauses (a), (b) and (c) of Sub-section (2) of Section 57 B of the said Act. It was specifically held in those decisions that a suit for declaration of title and permanent injunction is not hit by Section 57 B of the said Act. When in a suit the principal issue is the question of title, such suit is not hit within the mischief of Section 57 B of the said Act.

The present suit is simply a suit for declaration of title and permanent injunction and it does not in any way involve the determination of any of the matters specified in Sub-sections (1) and (2)of Section 57 B.of the said Act. The present suit, therefore, is not barred by the provision of Section 57 B of the said Act and as such the judgment and decree passed by the courts below are liable to be set aside as misconceived.

In the case in hand the Plaintiff has brought the suit for declaration of his title and permanent injunction and specifically contended in the plaint that the settlement has been made long prior to the mischief period referred to in Section 5A of the said Act by the father that is, in 1947 corresponding to 1353 B.S. The said fact is corroborated from the R.S. record of right where the name of the proforma Defendant No. 3 was recorded as person in possession. Merely because in the draft publication the name of the lessee did not appear the same can not be any basis to held that the settlement has been made during the mischief period. The State has failed to prove by evidence that settlement has not been made by the father of the Plaintiff in favour of the Defendant No. 3 in 1947 and that the heirs of the original owner have settled the property in favour of Defendant No. 3 during mischief period. The assumption of jurisdiction by Revenue Officer was erroneous in this behalf.

Admittedly, there was an order of status quo passed by this Court in a proceeding under Article 226 of the Constitution of India for a perior of four months from August 25,1975 and admittedly, the paffas were granted by the State in favour of alleged landless persons on September 20, 1975i that is, during the period when an order of restrain in the nature of status quo was in force. I am already indicated hereinabove that the order of status quo was passed by this Court in presence of the learned Advocate for the State. The Supreme Court of India in the case of Surjit Singh and Ors. v. Harbhan Sing and Ors. (supra) held that when a property is alienated during subsistence of an order of restrain, the court, in such circumstances, has the duty as also the right, to treat such alienation as having not taken place at all for its purposes. Unhesitatingly, I am of the opinion that the learned Judges in the courts below went wrong in proceeding the suit is hit by Section 34 of the Specific Relief Act, 1963 as the State had allegedly taken possession of the land and handed over the lands to alleged landless persons by executing partes. The courts below failed to take note of an important aspect of the matter, that is, the pattas were granted in defiance of order of status quo passed by this Court. When the court intended that a particular state of affairs to exist, such state of affairs is not only required to be maintained, but it is presumed to exist till the court directs otherwise.

I accordingly, allow this appeal and set aside the judgments and decrees passed by the courts below and decree the suit of the Plaintiff. The Plaintiff''s right, title interest in respect of the suit property is declared and it is, also, declared that the alleged settlements made by the State in defiance of the restrain order are nonest in the eye of law. The State of West Bengal and the persons claiming under it are restrained by a decree of permanent injunction from interfering with the peaceful possession of the Plaintiff in respect of the property-in-suit.

No one appeared on behalf of the Respondents, therefore, there will be no order as to costs.