Upendra Chandra Ghosh (Since Deceased) Through LRS vs Sova Rani Ghosh & Ors

Sahidullah Munshi, J

This second appeal is against the judgment and decree dated 13th December, 2005 passed by the learned Additional District Judge, 1st Court at Jalpaiguri in O.C. Appeal no. 01 of 2002 affirming the judgment and decree dated 12th December, 2001 passed by the learned Civil Judge (Senior Division) at Jalpaiguri in O.C. Suit No. 97 of 1997. Plaintiff is the appellant before this Hon'ble Court. Plaintiff filed a suit, inter alia, for declaration and partition. According to the plaint case one Khur Khundi Bewa owner in possession of land in C.S. Plot no. 280 recorded in C.S. Khatian no. 770/3 granted lease of a piece of land measuring 09 decimals by a registered lease deed in favour of the predecessor of the plaintiff, Late Nagendra Chandra Ghosh and the defendant. Late Ganga Charan Ghosh the father of Late Nagendra Chandra Ghose and defendant used to occupy and possess 08 decimals of land in addition to the said 09 decimals of land in the same plot and khatian lying contiguous east to the said 09 decimals of land since 1940 peacefully, openly and without any interruption from any quarter at any point of time and acquired valid possessory title with respect to the said 09 decimals of land. The lands measuring 17 decimals that is, 09 decimals and 08 decimals had all along been in joint possession of the defendant and said Nagendra Chandra Ghosh within one compact boundary as described in schedule 'A' and by virtue of an amicable arrangement between Late Nagendra Chandra Ghosh and defendant the plaintiffs have been possessing the land measuring 8½ decimals on the Southern portion of said 17 decimals of land while the defendant was in possession of 8½ decimals on the Northern portion of such 17 decimals of land. Late Nagendra Chandra Ghosh along with his family previously resided in a big room situated on the eastern vitti in the lands under his occupation and the said structure was shifted to Western side by him and raised construction of a room.

Nagendra Chandra duly paid rents to the Sate for his exclusive possession over 8½ decimals of land and also paid Municipal Tax and separate holding number being 368 under ward no. Old 7 (new 10) was allotted in his favour. Nagendra Chandra Ghosh died in or about 1973 leaving behind the plaintiffs and Sibu Charan Ghosh as his legal heirs who inherited the said properties of Nagendra Chandra Ghosh. The said Sibu Charan Ghosh was unmarried and has not been heard of for more than 7 years by those who would naturally have heard of him had he been alive and as such he is presumed to be dead in the eye of law. The defendant has been possessing his portion on the Northern side wherein he has constructed a Chowchalla big room with tin sheet roofing on the Eastern vitti and subsequently, he raised pucca construction on the western side of the land under his occupation.

C.S. Plot no. 280 comprising 17 decimals has been recorded in R.S. Plot no. 15 in separate R.S. Khatian, namely, 710 and 711. 09 decimals has been recorded in R.S Khatian no. 711. However, taking advantage of the simplicity and illiteracy of Late Nagendra Chandra Ghosh the defendant has shrewdly, illegally and surreptitiously in collusion with the settlement employees managed to get the said two R.S. Khatian recorded in his name alone. As the entire 17 decimals of land should not have been recorded in any way in the name of defendant alone as he has all along been possessing only half portion of said 17 decimals of land as such R.S. Khatina no. 710 and 711 have been prepared and opened wrongly, illegally and without any foundation as neither registered deed of lease nor the long possession of Late Nagendra Chandra Ghosh over the half portion of entire 17 decimals of land was taken into consideration by the settlement employees. Being emboldened by aforesaid wrong and illegal entry of entire 17 decimals of land in the sole name of the defendant in the aforesaid two R.S. Khatians, the defendant tried to disturb possession of the plaintiffs; in January, 1996, defendant illegally claimed to be owner of the entire 17 decimals of land and asked the plaintiffs to quit and vacate the structures and the lands which they have been enjoying and possessing since 1940. The defendant and his sons had already removed forcibly the betel-nut trees standing on the Northern side of the lands of the plaintiffs and are also continuously making illegal attempts to trespass upon the lands of the plaintiffs. Plaintiffs have made complaints to different authorities against the defendant for correction of the record of rights prepared under Khatian nos. 710 and 711 and also made complaint against defendant to Kotwali P.S. for taking action for his making threats and attempts to trespass upon their lands. Although there was an oral amicable arrangement between Late Nagendra Ghosh and defendant by virtue of which their separate possession in equal share has all along been maintained, there has never been any partition by metes and bounds with respect to the lands described in schedule "A" plaintiffs have made several demands to the defendant and ultimately, on 15.04.1997 refused to effect any partition of the suit property. Defendant contested the suit by filing written statement denying all material allegations made against the plaintiffs.

Mr. Basudeb Bhattacharya, learned advocate for the appellant/defendant has argued that entry in the R.S. Khatian was wrong and Court ought not to have declared the share of the plaintiff on the basis of such R.S. Khatian. However, it is undisputed that the said erroneous entry was never attempted by the defendant to be corrected. The positive case which the defendant in the second appeal has sought to advance is that the defendant was in possession of the suit land wherein he constructed a Chowchalla big room with tin sheet roofing. Mr. Bhattacharya sought to agitate before this second appeal Court that there is an oral amicable arrangement between late Nagendra Chandra Ghosh and the defendant by virtue of which the defendant was to possess the suit land and therefore, the decree which has been passed cannot stand. These arguments in the second appeal cannot be accepted firstly, there was no issue framed on the basis of such submission and it goes without saying that there was no issue because there was no pleading in the written statement. Mr. Bhattacharya, has also argued that in view of the bar under Section 57B of the West Bengal Estate Acquisition Act that no suit is maintainable for partition and also cannot be supported inasmuch as the suit for partition and declaration does not go within the bar of Sections 36 and 57B and the provision does not curtail the power of Civil Court which is specific and expressed under Section 9 of the Code of Civil Procedure. The other ground urged before the Second Appellate Court is not maintainable inasmuch as to decide the substantial question of law no such answer need be given in this appeal by the Second Appellate Court.

The decision cited by Mr. Bhattacharya in Purbanchal Estates Private Limited -Vs. - Hiralal Sarawgee reported in 2014(5) CHN (CAL) 337 on the issue that burden of proof is on the plaintiff to prove his case, does not help to nullify the decision of the Courts below, inasmuch as it is definitely the law that he who raises the issue it is his burden to prove but at times burden shifts. I have already clarified the position as to why the plaintiff is not required to prove his title when his possession over the suit land derived from his predecessor uninterruptedly has not been denied by the defendant.

In Pranab Kumar Maity -Vs. - Tapas Kumar Bhattacharya reported in 2015(5) CHN (CAL) 405 relied on by Mr. Bhattacharya on the issue that Section 57B of the West Bengal Estate Acquisition Act and Section 51C of the West Bengal Land Reforms Act creates a complete bar of jurisdiction to the Civil Court is also on the point in issue which has been decided in this case by the learned Courts below. Section 57B of the West Bengal Estate Acquisition Act, in my view never took away or curtail either expressly or impliedly the declaratory authority of the Court under Section 9 of the Code of Civil Procedure. Therefore, this decision also does not help Mr. Bhattacharya's client to succeed.

The language of Section 57B is so clear and if it is glanced through no one can come to a finding that it takes away the Civil Court's power over the declaratory suit.

Mr. Shyamal Kumar Das learned advocate appearing for the plaintiff/respondent in this Court has argued that Section 57B of West Bengal Estate Acquisition Act gives rise no bar for the Civil Courts jurisdiction in respect of a suit for declaration and he relies on the decision in Sudhabodh Misra -Vs. - State of West Bengal & Ors. reported in 1978 (1) CLJ 336. The decision with no ambiguous terms laid down the law that Section 57B of the West Bengal Estate Acquisition Act merely ousts the jurisdiction of Civil Court to entertain certain cases but it does not debar the Civil Court from entertaining suits relating to matter not specified in Sub-section (1) as well as Clauses (a), (b) and (c) of Sub-section (2) of Section 57 of the said Act. In the given case the fact leading to the said decision was that the petitioner before the High Court as plaintiff prayed for a declaration of his exclusive title to Schedule "A" property and for a declaration that the same could not have been in the suit. The plaintiff also prayed for a permanent injunction restraining the State of West Bengal from interfering with the possession of the plaintiff in respect of the said lands. The defendant no.1, State of West Bengal, filed a written statement contending, inter alia, that the plaintiff was not governed by the "Mitakshara School of Hindu Law" and there was no partition and the land in the possession of the plaintiff being above the ceiling had not been retained by the plaintiff and as such the same had vested in the State. Learned Munsif Court decreed the said land holding, inter alia, that the plaintiff was governed by the "Mitakshara School of Hindu Law" and that this question was finally and conclusively decided in an earlier suit to which the State of West Bengal, defendant no.1, was a party. Challenging the said judgment and decree of the learned Munsif the defendant no.1, State of West Bengal preferred an appeal before the First Appellate Court and a preliminary objection was taken on behalf of the State /appellant that the suit was not maintainable under Section 57B of the West Bengal Estates Acquisition Act. The Sub-ordinate Judge in appeal held that the bar was absolute and State sought the decree which has been decided by this Hon'ble Court in the cited decision. Paragraph 18 of the said judgment is relevant for our purpose and is set out below:

"18:- Section 57B of the said Act does not bar the jurisdiction of the Civil Court completely. It merely creates an embargo upon the civil Court to entertain suits for determination of rent or the determination of the status of the tenant or the incidents of tenancy. It also debars the civil Court from entertaining any suit for alteration of any entry in the finally published revisional record of rights or for decision of any dispute involving determination of the question of retention of land by a raiyat or intermediary either expressly or by implication when an order for preparation or revision of record of rights has been made under Section 39(1) of the said Act. The present suit is simply a suit for declaration of title and for permanent injunction and it does not in any way involve the determination of any of the matters specified in Sub-section (1) as well as in Clauses (a), (b) and (c) of Sub-section (2) of Section 57B of the said Act. The suit is, therefore, not hit by the provisions of the said Section and as such the impugned order holding that the suit abated under Section 57B of the said Act is per se without jurisdiction and hence the same is liable to be set aside. It is pertinent to refer in this connection to the decision reported in (20) 1975 (1) CLJ 154, Ram Krishna Mullick and others v. State of West Bengal and others where P.K. Banerjee, J. Has held that the suit will not be barred and the suit will not abate if the question of title is involved in the suit. It has been also held that the suit will not be barred and suit will not abate if it involved the question of partition between the co-sharers who are intermediaries. In another Bench decision of this Court reported in (21) 1975 (2) CLJ 305, Ayubali Sardar and another v. Derajuddin Mullick and others, to which I was a party it has been observed that in order to come within the purview or mischief of Section 57B(1) or 57B(2) the dispute or the question must be one which comes within the purview of determination in the preparation of the record of rights. A question or dispute which does not at all fall for determination in the process of preparation either of those provisions and consequently the entertainment of a civil suit for determination of such a dispute or question is not barred under the provision of the said Section nor it was so intended."

Learned trial Court on the basis of the pleading of the parties in the plaint and written statement framed the following issues:

1) Is the suit maintainable in its present from?

2) Have the plaintiffs any cause of action to file this suit?

3) Is the suit barred by the provision of Limitation Act?

4) In the suit barred by the principle of estoppels and acquisence?

5) Are the plaintiffs entitled to get the relief as prayed for?

6) What other relief/reliefs are the plaintiffs entitled to?

In answering issue no. 1, 2, 3 and 4 principally on the question of maintainability of the suit the learned trial Court has decided that the issue of maintainability cannot be answered in favour of the defendant and held that the suit is maintainable in Civil Court.

The Appeal Court also affirmed the same holding that the suit is maintainable before the Civil Court and there is no bar created by the West Bengal Land Reforms and Tenancy Tribunal Act (hereinafter referred to as the 'said Act'). For hearing a suit for partition and declaration of this nature before the Civil Court the bar created under Section 8 of the said Act, in my view, is not applicable and it does not oust the jurisdiction of the Civil Court in a declaratory suit.

While admitting the appeal this Court formulated the question of law as required under Section 100 of the Code of Civil Procedure. The following substantial questions of law are to be answered in deciding the present appeal:

a) In view of the admitted fact that the lease deed executed in the year 1950 in favour of the predecessor-in-interest of plaintiffs and defendants being confined only to 09 decimal of land, whether the learned Courts below, committed substantial error of law in passing a preliminary decree also in respect of further 08 decimals of land which is 'B' schedule property which was not the subject matter of the lease deed of 1950.

b) In absence of any evidence adduced by the plaintiffs showing that they had acquired any title in respect of 'B' schedule property, whether the learned Courts below committed the substantial error of law in declaring that recording of defendant in the 'B' schedule property was erroneous.

Answering to the first substantial question of law it is necessary to deal with the question which was dealt with by the trial Court under issue no. 5 & 6. It is the plaintiff's case that Khur Khundi Bewa was the owner in possession of land in C.S. plot No. 280 recorded in C.S. Khatian no. 770/3 by a registered lease deed of 09 decimals of land to Nagendra Chandra Ghosh (predecessor of the plaintiff and defendant) by registered patta no. 2345 dated 05.10.1950. Late Ganga Charan Ghosh, father of defendant and late Nagendra Chandra Ghosh used to possess 08 decimals of land in the same C.S. plot no. 280 under C.S. Khatian no. 770/3 since 1940 and thereby acquired valid possessory title in the said 08 decimals of land and the aforesaid 17 decimals of land had all along been joint in possession of defendant and late Nagendra Chandra and after the death of Nagendra Chandra Ghosh present plaintiffs but the defendant illegally in collusion with settlement Officer recorded his name alone in the said R.S. Khatian No. 710 and 711 in respect of entire 17 decimals of land, although, the defendant was in possession of only 8½ decimals of land out of the total 17 decimals. Recording in R.S. Khatian were without any foundation, inasmuch as registered patta no. 2345 dated 05.10.1950 and long possession of Nagendra Chandra Ghosh was not considered by the settlement Authority and the entry in R.S. Khatian no. 710 and 711 has accordingly been declared illegal and plaintiff's eight annas share in schedule 'A' property has been declared by the trial Court. This finding and the order of the trial Court has also been affirmed by the first Appellate Court, holding, inter alia, that by admission the patta which was made Exbt.1 was recognized as a jointly owned land and as regards the other portion of 08 decimals DW1 stated that except the possessory title from his father he did not acquire any further land by virtue of registered deed. Therefore, entry in the Record of Rights must be held to be wrong and was done by the adversaries intentionally with some ulterior motive. In my view, both the Courts below have decided the issues on the preponderance of probabilities and following the natural course of action, inasmuch as it is reasonable to be presumed that when father acquired property by virtue of the patta both the sons would inherit the same in equal shares. Since a portion of 17 decimals of land being 09 decimals has already been granted patta in favour of the father and since it has been proved that the remaining portion was in possession of patta holder, father of the parties, it is to be presumed that rest of the plot contiguous to the patta land was also in possession of the father and in usual course the same should have devolved upon the legal heirs namely, the plaintiffs and the defendants, who were legally possessing 09 decimals of land by virtue of registered patta and who was in possession of the rest of the plot by physical possession thereof. In my view, the learned Courts have not committed any error in arriving at such a presumption which is quite natural, unless contrary is proved. It is nobody's case that the land was not possessed by the father of the defendant the plaintiff. It is nobody's case that the suit land was acquired by the defendant by any legally created document. Defendant has made out a case also of possession and when such possession has been acquired through the father, possession of plaintiff is also established and cannot be denied by any means by the defendant. Moreover, in the written statement filed by the defendant he has never denied the possession of the plaintiff in respect of the suit property and in absence of such denial to the plaint averment and plaintiff's positive assertion that he is in possession of the land together with the defendant, the learned Courts below have committed no illegality in declaring plaintiff's share in the suit land. More so, when it is apparent from the evidence of DW2 that there was endorsement in remark column in R.S. Khatian No. 711 in pursuance of Section 45 of the West Bengal Estate Acquisition, but in cross-examination he stated that as per order-sheet Exbt.G notice was issued to different tenants of the Khatian mentioned in the order-sheet for review of cess and Exbt. "G" there is no mention of wrong recording or that any dispute to the land. In such circumstances there was no wrong on the part of the learned Courts below to come to a conclusion that the so called proceeding under Section 45 of the West Bengal Estate Acquisition Act was with regard to review of cess of the land comprised in various Khatians including R.S. Khatian No. 710 and 711.

I do not find any wrong on the part of the Courts below to the declaration so made by them in favour of the plaintiff when the specific pleading in the plaint made by the plaintiff that he has got 50% share in the land and that has not been denied by the defendant by any specific term, neither by making any specific averment in the written statement nor by any documentary proof. The presumption, therefore, under Order 8 Rule 3 of CPC should be adapted to the prejudice of the defendant. Even presumption under Rule 4 and Rule 5 can also be taken in the fact situation of the present case. Provision of Rule 3, 4 & 5 under Order 8 are set out below:

O.8. R.3.:- Denial to be specific:- It shall not be sufficient for a defendant in his written statement to deny-generally the grounds alleged by the plaintiff; but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

R.4.:- Evasive denial:- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

R.5.:-Specific denial:- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced."

Rule 3 lays down that the defendant in his written statement shall not deny generally the grounds alleged by the plaintiff and if it is so done that will not be sufficient denial in law. Defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Each fact alleged in the plaint is required to be dealt with separately and the defendant must state specifically whether he admits or denies it. Where the written statement is too vague and too general, it is the duty of the Court to call upon the defendant to furnish definite particulars of the plea even though the plaintiff does not seek clarification in this case. The defendant at the time of examination-in-chief also failed to clarify the position. Rule 4 specifies that defendant when denies the allegation of fact in the plaint he must not do so evasively and rather answer the point of substance. Allegation of fact either to be admitted clearly or to be denied boldly otherwise Court will draw adverse presumption that the defendant had admitted the claim. Rule 5 again specifies that every allegation of fact in the plaint if not denied specifically or by necessary implication shall be considered admitted and exactly what the learned Courts below have done in the present case. Therefore, the defendants' conduct and his pleading in the written statement if compared to the undisputed fact of the case that his father was the previous owner of the non-suit land contiguous to the suit land and that his father was in uninterrupted possession of the suit land, there is no scope for the defendant to claim that he is the absolute owner of the suit land.

Mr. Bhattacharya urged that although it was directly an issue whether the Record of Rights was correctly prepared or not but no issue was framed on the same by the learned Court below. Therefore, the decision arrived at by the first Appellate Court below should be set aside and the matter should be decided by this Court. This Court is not unmindful of the power under Section 103 of the Code of Civil Procedure which empowers this Court to determine even an issue of fact in a second appeal but Mr. Bhattacharya could not satisfy the Court that evidence available on record would satisfy the court to decide the issue. Since the defendant did not make any pleading in the written statement could lead any evidence to controvert to the specific assertion of the plaint case, neither by material evidence nor by oral evidence and in absence of any such evidence power under Section 103 cannot be exercised by this Court. Therefore, even if the second Appellate Court can decide any such issue necessary for disposal of the appeal, but is helpless inasmuch as no evidence is available on the question whether the recording was correct or not.

Mr. Das learned advocate for the respondent/plaintiff has relied on another decision in the case of Sri Satyendra Nath Roy (deceased) substituted by Smt. Aruna Roy & Ors. -Vs. - Smt. Chhabi Rani Mundra reported in Cal LT 1996(2) HC 467. The decision supports the contention that written statement filed by the defendant must specify the denial to the plaint case. The court itself is very clear on the point that evasive denial is not desirable.

All the substantial questions of law framed at the time of the admission of the appeal are answered in the negative. The appeal, therefore, fails and dismissed.

The judgment and decree passed by both the learned Courts below are hereby affirmed. In the facts and circumstances of the case, I, however, do not pass any order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.