Kalyani Bera vs Sudhir Ch. Khatua

Basudeva Panigrahi, J.—This appeal is against reversing judgment and decree passed by the 3rd Court of Subordinate Judge, Midnapore in T.A. 5/73 dated June 11, 1974, dismissing the Plaintiff''s suit in T.S. 43/70 which was decreed by the learned Munsif, Additional Court, Contai. The Appellant filed a suit for declaration of her right and for permanent injunction. The learned Munsif has decreed the suit in part. Therefore, the State of West Bengal being aggrieved by the judgment and decree passed by the learned Trial Court preferred an appeal which was, of course, allowed by the first appellate Court. Thus the Plaintiff being aggrieved by the dismissal of her suit has filed this present appeal.

The Appellant in her plaint has stated that the disputed properties mentioned in Schedules Ka and Kha previously belonged to the Respondent No. 2 who transferred by means of sale deeds, Exhibits. 1/B, executed on 28th and 30th Chaitra, 1362 B.S. The Defendant No. 1 after possessing the suit land for some years transferred his interest to the Plaintiff on 14th Aghrahayan, 1367 B.S. Since the date of her purchase she has been in possession of the properties in her own right.

It is alleged that ''Ka'' schedule land was wrongly recorded in R.S. Record of Rights in the name of Defendant No. 3, namely, the State of West Bengal erroneously. It was, therefore, disputed by the Plaintiff that since there was no vesting of such land in the State Government, therefore, there was no occasion to make such entry in the Record of Rights to have vested. When the employees of the State of West Bengal hurled threats to the Plaintiff in or about Baisakh, 1374 B.S. she, therefore, served a notice u/s 80 CPC before institution, of the suit. Even after expiry of the period when the State Government did not made any attempt to mitigate the Plaintiff''s worry, therefore, she was obliged to file a suit before the learned Munsif.

In the Trial Court, the State Government has filed its Written Statement by submitting that the Deed of Conveyance executed by the Defendant No. 1 in favour of the Appellant-Plaintiff did not convey any right, title, interest in her favour. Another stand was taken that there might be collusion between the Defendant No. 2 and the Plaintiff. Just to deprive the rights of the State Government the Defendant No. 2 might have created fictitious deed in favour of Defendant No. 1. The Trial Court on careful consideration of evidence, however, held that a portion of the suit Land did not vest in the State Government and that the transfer executed by Defendant No. 2 in favour of Defendant No. 1 shall be effective from the date of execution of the document notwithstanding the registration which had taken place at a later date. Since the portion of the land did not vest in the State Government, therefore, there was no occasion for the Defendant No. 2 to claim such land before the Estate Acquisition Collector. Thus in the above backdrop the Plaintiff''s right over a portion of the land could not be disputed.

From the trial Court''s judgment it appears that the suit has been dismissed in so far as Schedule ''Kha'' of the plaint is concerned. Therefore, it is necessary only to discuss the Plaintiff''s right over ''Ka'' schedule property of the plaint.

The appellate Court, however, disagreeing with the observation of the learned trial Court held that the document executed by the Defendant No. 2 in favour of Defendant No. 1 shall only be effective from the date of registration. He further noticed from Ext. B that the Defendant No. 2 held land more than the prescribed ceiling limit under the Estate Acquisition Act. The trial Court held in so far as ''Ka'' schedule property is concerned it did not vest in the State Government. It has been observed by both the Courts that the Defendant No. 1 was in possession under the strength of the Deed of Conveyance executed by the Defendant No. 2. He was also being treated as the Raiyat under the State Government who was collecting rent from him. The Appellate Court further held that by virtue of Section 57B of the West Bengal Estate Acquisition Act, 1953 no suit in respect of 2(a) and 2(b) of the Act can be held to be maintainable in the civil Court. Therefore such suit has already abated. With this observation the Plaintiff''s suit was dismissed in its entirety.

Mr. Sahoo, the learned advocate appearing for the Appellant has severely attacked the judgment of the appellate Court. It has been contended that the appellate Court has misread the provision of Registration Act and wrongly came to the conclusion that the question of passing title should only be taken into consideration from the date of registration notwithstanding the date of execution. While deciding the question of passing title, according to Mr. Sahoo should have been taken into consideration on the basis of the evidence of the vendor and the vendee. Such intention can only be gathered from the documents itself and in case of any ambiguity, then of course it is open to the parties to lead evidence with regard to the contents of the documents. To strengthen his limb of submission he has read out the contents of the documents, Exts. 1/A and 1/B. From the contents it is crystal clear that the Defendant Nos. 1 and 2 were sure that the title would pass from the date of execution of the documents irrespective of registration.

Both the documents had been executed within a week prior to the date of passing of West Bengal Estate Acquisition Act, 1953. Undisputedly the Estate Acquisition Act came into force from April 14, 1956, and those two documents, viz, Exts. 1/A and 1/B were executed on April 11, 1956 and April 13, 1956.

Another significant feature cannot be lost sight of, since, the State of West Bengal has only disputed the sale deed executed by the Defendant No. 2 in favour of Defendant No. 1 u/s 5A of the Act. Had such documents been executed to defeat the right of the State Government, it could not have omitted to take appropriate action against the Defendant No. 1 u/s 5A of the Act. No credible and believable evidence has also been led by the State Government in the trial Court that such documents were created to defeat the right of the State Government. In the absence of such evidence it does not stand to reason as to how the appellate Court held in its judgment that possibly the parties might have colluded in order to defeat the right of the State Government. In order to consider the validity of the appeal Court''s judgment in so far as the absence of title of the Plaintiff by virtue of Exts. A/1 and A/2 is concerned, much reliance has been placed on Section 47 of the Registration Act. It is true that as per Section 47 of the Registration Act the title will ordinarily pass from the date of registration. This provision had very often appeared before this Court for interpretation and this Court on a number of occasions held that so far as this documents is concerned, registration shall be a guiding factor so as to pass title to the vendee. But in so far as the right of vendor and vendee is concerned, the passing of title shall ordinarily be construed from the date of execution of the sale deed notwithstanding the date of registration. It may be assumed that registration of a document is being postponed on various grounds Due to the causal attitude of the authorities, due to work-load and several other factors. Once the document is presented for registration, it is not within the control of the parties as to how expeditiously to get the same registered. Therefore, in such factual backdrop because there was delay in registration of the document, why the right of a party shall be defeated when there was clear and unambiguous decision that title would pass from the date of execution. In this respect reliance was placed by the Appellant on a reported judgment in State of West Bengal v. Nemai Chand Kundu 82 C.W.N. 743 where it has been held as follows:

The language of Section 47 is of widest amplitude and it has been held to apply to subsequent transfers of the same property as also on attachments on such property. On a parity of reasoning it will apply to a case where a receiver is appointed of the properties belonging to the transferor when his properties and rights therein vest in such receiver as if he is the owner himself. Same will be the position in respect of liquidator of a company in whom the company''s property and rights therein vest, when the company goes into liquidation under the provisions of the Companies Act, 1956 except for fraudulent or other transfers. There can be no exception in law to vesting of interest of raiyats an intermediaties in the State under the provisions of the statute as vesting is nothing different in effect, from the transfer or devolution of the interest of the raiyats and intermediaries in the state by operation of law in respect of the same properties and it is not the requirement of the statute either that in respect of such transfer by a raiyat or intermediary the registration of the connected document must be complete as held in the preemption cases before the vesting taken place. In this view, the transfer made by the vender of the Respondent prior to the date of vesting till not be subject to vesting, though the registration was effected later as the vendor had No. longer an interest in the property which could be vested, in the State on the date of vesting.

On a plain reading of the judgment if appears that the facts of the case is perimeteria applicable to the present facts. In the aforesaid case several judgments of this Court as well as the Privy Council were considered and it was held that passing of title to a party shall be depending upon the intention of vendor and vendee, which shall be gathered from the documents itself. In that view of the fact I have no hesitation to hold that Ext. 1/A and Ext. 1/B were validly executed by the Defendant No. 2 in favour of the Defendant No. 1.

Mr. Sahoo next argues that the lower appellate Court has committed legal error in holding that Section 57B, Sub-Section (2) is applicable in this case. On a plain reading of the prayer it has revealed that the Plaintiff has claimed for declaration of his title and permanent injunction. Of course, incidentally, she made a further prayer with regard to the correction of Record of Rights. In case first prayer is granted, second prayer has to be impliedly granted to the Plaintiff. In this respect reliance was placed upon the judgment in Tarak Chandra Dholey v. Satyanarain Singh and Anr. 1975 (2) C.L.J. 246 where it has been held as follows:

In a suit for establishment of title a person whether is a Plaintiff or a Defendant, is entitled to prove that the adverse entries in the Record of Rights were erroneous. Law does not require that one must bring a suit for alteration of such incorrect entries before a Court, before the Court pronounces such entries to be incorrect. Clause (a) of Sub-section (2) of Section 57B deprived the Civil Court''s jurisdiction to entertain suits or applications relating to alteration of any entry in the Record of Rights under Chapter v. of the Act, concerning any land or estate or any right in such estate. Thus the object of Section 57B(2)(a) is to give finality to a proceeding under Chapter v. of the Act. But there could no question of excluding the Civil Court''s jurisdiction to entertain suits in respect of the matters, which do not arise at all or only incidentally arise for adjudication in such proceedings under Chapter V.

A suit for establishment of title and other ancillary reliefs against private persons cannot be said to be covered by Section 57B(2)(a).

Section 57B(2)(c) covers different kinds of enquiries and proceedings which may be conducted by the authorities mentioned in Section 54 of the Act. Clause (b) of Section 57B(2) covers questions relating to retention u/s 6. If the provisions relating to the different classes of enquires under the Act are closely examined, it would appear that no machinery has been provided for adjudication of disputes between private individuals relating to title and ancillary questions thereto. The enquiries under the Act relate to or are concerned with questions of acquisition and vesting, rights of intermediaries and of contain other persons, including the rights to retain, assessment and payment of compensation and supplemental and miscellaneous provisions. When a particular suit does not substantially come within the scope of any of those matters, Civil Courts jurisdiction to entertain suits of civil nature still remains unaffected.

In each case, the Court should decide whether the suit before it comes within the mischief of Section 57B(2). In case it is found that the section is attracted, then, the Court may pronounce that the suit should abate, otherwise the Court should proceed with its trial in accordance with law.

The Division Bench in the abovementioned case had clearly held that in so far as the declaration of title of a person is concerned, it is the civil Court which is competent to grant such relief Law does not require that a party must bring a suit for alteration of incorrect entries in the Record of Rights since by virtue of the Divison Bench''s mandate which has clearly held that it is the civil Court which is competent to entertain such a suit, the reasoning of the appeal Court has, therefore, no basis to sustain.

The suit was decreed in part by the trial Court in so far as the ''Ka'' schedule is concerned. Admittedly there was no cross objection or appeal against the part dismissal of the suit.

Be it noted here although the Appellant''s learned Counsel was directed to serve a notice upon the learned Advocate General that the appeal shall be taken up for hearing but none has appeared at the time of hearing.

Initially the State was being represented by a learned Counsel but the reasons best known to him at the time of final hearing he did not appear in the appeal Taking the facts and circumstances into consideration and also the unreasonableness of the appeal Court''s judgment I set aside the judgment and decree passed by the appeal Court in T.A. 5/73 and restore the trial Court''s part decree in T.S. 43/73. The appeal is allowed in part but without cost.

Appeal allowed.