Calcutta High Court (Appellete Side)
Gour Chandra Maity & Ors vs Lakshmipriya Maity (Deceased ... on 13 September, 2021
1
16 13.09.2021
SA 284 of 2016
SAT 398 of 2015
with
I.A. No.: CAN 1 of 2016 (Old No.: CAN 6519 of 2016) (not found)
Gour Chandra Maity & ors.
vs.
Lakshmipriya Maity (Deceased represented by Debabrata
Maity) & ors.
Mr. Ashish Ch. Bagchi, learned senior advocate
Mr. Satyajit Mandal
Mr. Suranjan Mandal
Mr. Ratul Ghosh
... for appellants
Mr. Bagchi, learned senior advocate appears on
behalf of appellants and submits, his clients were
defendants in the suit, correctly dismissed by the trial
Court. The lower appellate Court, however, erred in partly
decreeing the suit declaring plaintiffs to have right, title,
interest and possession over the properties situated at
plot nos. 382, 383, 384, 387 and 388, described in
schedule to the plaint. Claim on plot no. 381 was rejected
on his clients having 'protected interest' therein.
He draws attention to appreciation of evidence
by the lower appellate Court and demonstrates that plot
no. 381 was found to be 'tank' (pukur). Nature of plot no.
382 is 'bastu' and plot no. 384, 'bandh'. He submits,
Bengal Tenancy Act, 1885 is applicable to land held by a
tenant. There cannot be application of the Act to
homestead land or 'bastu', where there is construction.
According to him, there was construction on the plot
recorded as 'bastu'. It is the recent Commissioner's report
(ext. E) that did not refer to construction but such was
not good evidence, to be relied upon for purpose of
treating said land as not actually diverted to purpose
other than agriculture. A question of law arises.
A further question arises on including plot no.
384, found to be recorded as 'bandh'. The 'bandh' is a
construction and as such would be covered by clause (c)
under section 160, to also be 'protected interest' as found
by said Court in respect of 'tank'.
On perusal of both the judgments, we find Roys
were the intermediary. Narendra Nath Gayen was a
tenant in respect of suit plots, who died issueless leaving
behind two widows. The widows had inducted Laxmi
Narayan, under whom appellants are claiming. The
widows defaulted in payment of rent and the intermediary
brought rent suit against them. In execution in the rent
suit, there was auction, in which Sarat Chandra Naskar
purchased suit properties. Sarat Chandra Naskar
initiated Misc. case in year 1952, under section 167, for
annulment of incumbrance by occupation of Laxmi
Narayan. He was successful. Plaintiffs claiming under
Sarat Chandra Naskar filed suit for declaration and
injunction.
Appellants are aggrieved on findings of lower
appellate Court in favour of plaintiffs, in respect of plot
no. 382 recorded as 'bastu' and plot no. 384 recorded as
'bandh'. Said Court looked at the evidence, both oral and
documentary, to find that the plots other than 'tank' had
never been diverted for purpose other than agriculture.
With reference to documentary evidence, said Court found
Sarat Chandra Naskar to have paid the rents, where
defendants did not. This was circumstantial evidence to
corroborate plaintiffs' contention that they got suit plots
from Sarat Chandra Naskar by oral lease of agricultural
land. On this basis said Court found title of plaintiffs.
We do not find any question arising from appreciation of
the evidence.
However, we admit the appeal on the following
question to be answered.
"Is land recorded as 'bandh' a protected interest
under clause (c) in section 160, Bengal Tenancy
Act, 1885?"
Call for the records. Appellants will put in
requisites for preparing paper books and issuance of
notice of appeal.
Liberty to mention before the learned single
Judge having determination for hearing of the appeal,
when made ready.
Mr. Bagchi wants to press the injunction
application pursuant to the appeal being admitted as
above. We have determination over applications in
connection with admission of appeals and not thereafter.
Appellants have liberty to mention before the learned
single Judge having determination, to move the
application.
(Arindam Sinha, J.)
(Sugato Majumdar, J.)
