Haripada Malik & Anr vs Birendra Nath Malik & Ors
2021 Latest Caselaw 94 Cal

                   IN THE HIGH COURT AT CALCUTTA
                   CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                              S.A 1206 of 1976

                            Haripada Malik & Anr.
                                     -Vs-
                       Birendra Nath Malik & Ors.

      For the Appellants:       Mr. Ashis Kumar Sanyal,
                                Mr. Mukteswar Maity.

      For the Respondent No.2 & 10:

Mr. Puspendu Bikash Sahu, Mr. Sudhakar Biswas, Mr. Prasanta Bishal.

Heard on: November 22, 2019 and January 8, 2021.

Judgment on: 8th January, 2021.

BIBEK CHAUDHURI, J. : -

1. Defendants in a suit for declaration and permanent injunction are

the appellants before this court challenging the concurrent finding of fact

by the trial court as well as the First Appellate Court.

2. For proper adjudication of the instant appeal, the following facts are

required to be put on record:

3. The respondents as plaintiffs filed a suit for declaration and

permanent injunction against the defendants stating, inter alia, that they

purchased 2.79½ decimal of land in khatian No.24 by auction purchase

from Tamluk Central Co-operative Bank by two sale deeds and also from

defendants No.2, 3, 5 and 9 by seven sale deeds. Thus, the plaintiffs

became the owners of 2 anas, 16 gondas, 2 karas and 2 kranties share in

the said khatian No.24. However, in RS Record of Rights plaintiff's names

were recorded in respect of only 2 anas, 1 gonda and 1 kara land

erroneously and the remaining share of land was not recorded in their

names. The remaining share of land is the subject matter of the suit. It

was also pleaded by the plaintiffs that the names of defendant No.1 was

wrongly recorded as a bargadar in respect of plot No.117. On the strength

of such erroneous entry, the defendants were trying to create disturbance

on the plaintiff's lawful possession over the suit property. Therefore, the

plaintiffs filed the suit for declaration of their title and permanent

injunction restraining the defendants from causing any disturbance in the

matter of peaceful enjoyment of the suit property by the plaintiffs.

4. Defendant No.1 and 4 contested the suit by filing written statement.

5. It was contended by defendant No.1 that he was a recorded

bargadar in respect of plot No.117 and he used to cultivate the land as

bargadar the delivered share of the produce to the plaintiffs regularly.

6. The case of the defendant No.4, on the other hand is that he and

his brother Srimanta had 1/6th share in respect of the property recorded

in khatian No.24. They mortgaged their share to one Khetro Bera.

Subsequently the heirs of Khetro Bera filed a Mortgage Suit No.136 of

1938 in the 3rd Court of learned Munsif [now, Civil Judge (Junior

Division)]. The said suit was decreed and the decree was put in execution.

In execution one Bhupen Bera purchased the said 1/6th share of land

situated in khatian No.24. Subsequently the said Bhupen Bera sold out

the said land to defendant No.4 orally at a sum of Rs.625 in 1353 B.S. It

was also contended by defendant No.4 that one Bhajahari was the co-

sharer in respect of another 1/6th share of land in khatian No.24. After

the death of Bhajahari and his wife Kalashi and daughter Kadambini

inherited the said property and Kadambini sold out her share in favour of

defendant No.4 by executing a deed of sale dated 12 Falgun, 1360. Thus,

the defendant No.4 became the owner of 1/3rd share in the property in

suit. The defendant No.4 further contended that the entries in RS khatian

were absolutely correct. The said entries were made in terms of a petition

of compromise entered into by and between the plaintiffs and the

defendants in Objection Case No.21 of 1954 under Section 44(1) of the

West Bengal Estates Acquisition Act, 1953.

7. On the basis of the pleadings of the parties and evidence adduced

by the witnesses, the learned trial judge by a judgment and decree dated

10th March, 1967 decreed the suit on contest against the defendants

No.1-4 and exparte against the rest. Right, title and interest of the

plaintiffs over the suit property were declared and it was further declared

that the entries in the RS Record of Rights contrary to the plaintiff's title

were erroneous. The defendant No.1 was permanently injuncted from

cultivating plot No.117 as bargadar.

8. The judgment and decree passed in Title Suit No.8 of 1966 was

challenged in Title Appeal No.177 of 1967 by the defendant No.1 and 7.

The said appeal was allowed on contest. The judgment and decree passed

by the learned trial judge was set aside and the suit was sent back on

remand for disposal according to law and in the light of the observation

made by the First Appellate Court in his judgment on appeal.

9. After remand Title Suit No.8 of 1966 was heard by the learned

Munsif Additional Court at Tamluk and by a judgment and decree dated

11th December, 1968 the suit was decreed on contest without cost against

defendant No.1-5 and exparte against the rest.

10. The contesting defendants filed Title Appeal No.140 of 1969 against

the aforesaid judgment and decree passed by the learned Additional

Munsif, Tamluk. The appeal was again allowed and the suit was sent

back on remand directing the learned Munsif to rehear the suit in the

light of the observation made in the body of the judgment and in

accordance with law.

11. The said suit being renumbered as Title Suit No.203 of 1971 was

again heard by the learned Munsif, 3rd Court at Tamluk and it was again

decreed on contest against defendant No.4(ka) and 4(kha) and exparte

against the rest by a judgment and decree dated 27th October, 1971.

12. The contesting defendants filed an appeal being Title Appeal No.752

of 1971 challenging the said judgment and decree passed in aforesaid

Title Suit No.203 of 1971. The appeal was dismissed on contest. The

plaintiff's title over 2 anas, 16 gondas, 2 karas and 2 kranties share in the

disputed land recorded in khatian No.24 of mouza Parulbari was

declared.

13. The instant appeal was preferred challenging the concurrent

findings of both the trial court and the first court of appeal.

14. It is ascertained from the record that the instant second appeal was

admitted for hearing vide order dated 6th July 1976 by the Division Bench

of this Court. However, at the time of admission of appeal the Division

Bench of this Court did not formulate any substantial question of law.

This court vide order dated 11th November, 2019 formulated the following

substantial questions of law for hearing of the appeal:-

(1) Whether both the Courts below substantially erred in law

in decreeing the suit and dismissing the appeal

respectively without considering the provisions of Section

21(3) of the West Bengal Land Reforms Act for

determination of Barga raiyat in favour of defendant No.1

in respect of the schedule suit property.

(2) Whether the Courts below substantially erred in law by

not relying upon the compromise decree passed in Case

No.21 of 1954 under Section 44(1) of West Bengal Estates

Acquisition Act by declaring the said compromise

application as fraudulent.

(3) Whether both the Courts below substantially erred in law

in holding that the suit was not barred under the proviso

to Section 34 of the Specific Relief Act.

15. At the risk of repetition and for the purpose of proper adjudication

of substantial questions of law involved in the instant appeal, it is

necessary to mention that Title Suit No.203 of 1971 was decreed in favour

of the respondents on contest against the defendant No.4 (ka) and (kha)

and exparte against the rest. Right, title and interest of the respondents

over "Ka" schedule land was declared. It was further declared that the

entries in the RS Record of Rights in respect of suit property were

erroneous and the original defendant No.1 Nikunja Bihari Mali was

permanently injuncted to cultivate suit plot No.117 of mouza Parulbari

within P.S Nandigram, Purba Medinipur as bargadar.

16. On perusal of the judgment passed by the learned Munsif, 3rd Court

at Tamluk in Title Suit No.203 of 1971, it is found that the learned Munsif

held that the suit was not barred under Section 34 of the Specific Relief

Act. It was pleaded by the defendants that the defendant No.1 was in

possession of suit plot No.117 as Bargadar and the original defendant

No.4 was in possession in respect of a substantial portion of the suit

property by auction purchase in court sale as well by purchase from one

Kadambini.

17. The learned Munsif on the basis of the pleadings of the parties and

on scrutiny of evidence on record found that the plaintiffs/respondents

were in possession of the suit property. The learned Munsif also held that

even assuming that defendant No.4 was the owner in respect of a portion

of the suit property, he cannot challenge plaintiff's possession over the

rest of the property because the possession of the original defendant No.4

was that of a co-sharer and being a co-sharer he cannot challenge the

possession of the plaintiffs/respondents. The learned Munsif also found

that the defendant No.4 could not produce any document to show that he

purchased 1/3rd share of the suit property by auction through court sale.

On the contrary, DW4 clearly admitted that the plaintiffs/respondents

were in possession of the suit property.

18. It is needless to say that the question as to whether a particular

person is in possession of the suit property or not is essentially a question

of fact which has been established in favour of the plaintiffs/respondents

from clear admission of DW4. When possession of the

plaintiffs/respondents was not disputed, the suit cannot be said to be

barred under the proviso to Section 34 of the Specific Relief Act. Plaintiffs

in possession of the suit property, prayed for declaration of their title over

the same as it was clouded by the rival claim of original defendant No.1

and defendant No.4. Both the courts below concurrently held that

plaintiffs/respondents were and still are in possession of the entire suit

property. The original defendant No.1 claimed to be a bargadar under the

plaintiffs in respect of plot No.117. When he claimed to be a bargadar in

respect of a plot of land, he cannot challenge the ownership and

constructive possession of the plaintiffs in respect of the suit property.

19. Hence I can safely conclude that the suit is not barred under the

proviso to under Section 34 of the Specific Relief Act and substantial

question of law No.3 is accordingly answered in favour of the respondents

and against the appellants.

20. It is borne out of record that a proceeding under Section 44(1) of the

West Bengal Estates Acquisition Act which was registered as Case No.21

of 1954 was initiated by and between the parties. It is the case of the

original defendant No.1 that the said proceeding under Section 44(1) of

the W.B.E.A Act was disposed of on the basis of a compromise arrived at

by the parties on the basis of which the name of the defendant No.1 was

recorded as bargadar in respect of plot No.117. The plaintiffs/respondents

pleaded that the said compromise petition was fraudulent and they never

executed the said compromise petition putting their signature thereon.

The learned trial judge himself compared the signatures of the original

plaintiffs appearing in the purported compromise petition with their

admitted signatures appearing on the plaint and vokalatnama and

concluded that the signatures of the plaintiffs were not identical with their

admitted signatures on the plaint and vokalatnama. He also found that

the said compromise petitioner is not legal and binding because out of 18

co-sharers, only 8 co-sharers signed the compromise and others were left

out. The learned Counsel for the respondents has brought my attention to

the judgment passed by the learned Judge in the First Appellate Court.

The relevant portion of the judgment of the First Appellate Court is quoted

below:-

"At the very beginning, I may mention here that the finding of

the learned Munsif as to fraudulent nature of the compromise

petition filed in Case No.21 of 1954 as has been decided by

the learned Munsif has not at all been challenged before me.

The observation of the learned Munsif in respect of two issues

10 and 11 regarding the compromise petition filed in Case

No.21 of 1954 under Section 44(1) of the W.B.E.A. Act have

not been questioned at all before me. In this contest I have no

hesitation to hold that the observations of the learned Munsif

that the very basis of the entries in the RS Record of Rights

alleged to have been made on the strength of a compromise

between the plaintiffs and the defendants which is a

fraudulent is not (sic) sound and his observations that the

entries cannot be relied upon have to be accepted as such

finding of the learned Munsif has not been question before me

at all."

21. According to the learned Counsel for the respondents, the

appellants cannot challenge the finding of the learned Munsif in the

second appeal without challenging the same before this Court.

22. It is further submitted by the learned Counsel for the respondents

that barga right is a personal contractual right. Defendant No.1 did not

prefer any appeal against the concurrent judgment and decree passed by

both the courts below. Therefore, the findings of both the courts below

with regard to original defendant No.1's contractual right of bargadar over

plot No.117 cannot be questioned in the instant appeal.

23. It is further pointed out by the learned Advocate for the respondents

that the preparation of Record of Rights under the West Bengal Estates

Acquisition Act is dealt with in Chapter-V of the said Act. Section 39 deals

with preparation of Record of Rights. Under Section 39 of the said Act, the

preparation or revision of Record of Rights should be made in the manner

laid down in schedule-B to the rules. The particulars required to be

recorded have been stated in Rule 26. Section 44(1) of the West Bengal

Estates Acquisition Act states, "When a record-of-rights has been

prepared or revised, the Revenue Officer shall publish a draft of the record

so prepared or revised in the prescribed manner and for the prescribed

period and shall receive and consider any objections which may be made

to any entry therein or to any omission therefrom during the period of

such publication :

Provided that no order under Section 5A shall be liable to be

reopened in pursuance to an objection made under this

section."

Section 44(1) has no presumptive value unless it is

finally published. The entries in a finally published record of

rights must be presumed to be correct unless proved by

evidence to be incorrect. This presumption of accuracy is a

rule of evidence laid down in Section 35 of the Evidence Act.

The plaintiffs/respondents challenged the correctness

of finally published record of rights in respect of plot No.117

so far as it relates to recording of the name of Nikunja Behari

Mali as bargadar of the said plot of land on the ground that

such recording was made on the basis of a compromise

petition which was fraudulent in nature and not signed and

executed by the plaintiffs.

24. It is already stated that plaintiff's case was accepted by the learned

Munsif, 3rd Court at Tamluk and it was not challenged before the First

Appellate Court by the contesting respondents. It is rightly submitted by

the learned Advocate for the respondents placing reliance on the decision

of the Hon'ble Supreme Court in the State of Maharashtra & Ors. vs.

Admane Anita Moti & Ors reported in AIR 1995 SC 350 that the factual

recitals or observations made in a judgment or order are taken to be

correct unless rebutted. The burden to rebut it is on the person who

challenges it. One of the methods to rebut such observation is to file the

affidavit of the person who was present in the Court and to produce such

material which may satisfy the Court that the recital in the judgment

crept in inadvertently or it was erroneous. The appellants having been

failed to challenge the finding of the learned Munsif, 3rd Court at Tamluk

in First Appeal practically accepted the said finding as to the fraudulent

nature of compromise petition filed in Case No.21 of 1954.

25. Learned Advocate for the appellant, on the other hand strenuously

argues that the jurisdiction of the Civil Court is expressly barred under

Section 21 of the West Bengal Land Reforms Act in respect of any order

passed by the Revenue Officer making entry of the name of bargadar in

respect of a piece of land, termination of cultivation by bargadar, orders

relating to division and delivery of produce by the bargadar to the raiyat

of the land, restoration of land to bargadar and surrender or

abandonment of cultivation by bargadar. According to the learned

Advocate for the appellants, name of Nikunja Behari Mali was recorded as

bargadar in a proceeding of 1954. The suit was filed by the plaintiffs in

the year 1966 challenging the compromise petition on the basis of which

name of the said Nikunja Behari Mali was recorded as bargadar in respect

of plot No.117. The said record cannot be challenged in a Civil Court as

the court has no jurisdiction to decide such question.

26. I am not in a position to accept such argument advanced by the

learned Advocate for the appellants. If the pleadings in the plaint are

closely examined it seems to be clear that the plaintiffs prayed for a

declaration that the purported compromise petition filed in Case No.21 of

1954 under Section 44(1) of the West Bengal Estates Acquisition Act was

fraudulent and not binding upon the plaintiffs on the ground that petition

of compromise was not signed by the plaintiffs. It is held in the case of

Molla Sirajul Haque vs. Gorachand Mullick reported in AIR 1993 Cal

58 that compromise not signed by the parties cannot be recorded by the

court. Validity of consent order depends wholly upon legal validity of

agreement on which it rests. It is already stated that the appellants did

not challenge the finding of learned trial court regarding fraudulent

nature of the compromise on the basis of which name of Nikunja Bihari

Mali recorded as bargadar in respect of plot No.117. At this stage the

appellants cannot challenge the said finding of the trial court and urge

that the compromise petition was legal, valid and effective. Last but not

the least, on proper consideration of the pleadings of the parties, this

Court is of the view that the suit was not for denial of barga right of

original defendant No.1, but it was for declaration that the compromise

decree was fraudulent, illegal and inoperative on the basis of which the

original defendant No.1 was declared as bargadar in respect of plot

No.117.

27. Thus, I find that the framing of the suit was not barred under the

provision of Section 21(1) of the West Bengal Land Reforms Act.

28. Substantial questions of law are accordingly decided against the

appellants.

29. For the reasons stated above the appeal fails and the same is

dismissed on contest, however without cost.

30. The judgment and decree passed in Title Suit No.203 of 1971 and

affirmed in Title Appeal No.752 of 1971 are affirmed.

31. There shall however be no order as to cost.

(Bibek Chaudhuri, J.)