Akshay Kumar Panja vs State Of West Bengal & Ors
2022 Latest Caselaw 8612 Cal

Dl.   December              S.A.T. 450 of 2012
44.   22, 2022

                            Akshay Kumar Panja
                            Vs,
                            State of West Bengal & ors.

The matter appeared in the warning list on November

29, 2022 with a clear indication that the matter would be transferred

to the daily cause list on December 5, 2022 before the regular

bench. Since then the matter is appearing in the list. The present

appeal is of the year 2012.

Today the appellant is not represented, nor any

accommodation is prayed for.

The appeal is defective as it appears from the report of

the additional stamp reporter dated September 15, 2012. A co-

ordinate bench of this court, on July 27, 2015, upon noticing the

defects reported by the additional stamp reporter granted leave to

the learned advocate on record for the appellant to rectify those

defects and to mention the appeal for enlistment after removal of

such defects. The department has reported that the defects pointed

out by the additional stamp reporter have not yet been removed.

In absence of the appellants, we have carefully gone

through the judgments of both the courts below and the grounds

taken by the appellants for considering the question of admission of

the present second appeal.

The judgment and decree of affirmance dated June 21,

2012 passed by the learned Additional District Judge, Third Court

at Barasat, North 24-Parganas, in Title Appeal No. 130 of 1992

arising out of judgment and decree dated February 12,1992 passed

by the learned Munsif, Second Court at Basirhat, North 24-

Parganas, in Title Suit No. 335 of 1977, which is a suit for

declaration and permanent injunction, is the subject matter of

challenge in this appeal.

The trial court did not find any reasonable or cogent

ground for accepting the order passed in Ceiling Adjustment Case

no. 3 of 1969 under Section 6(I) read with Section 47 of the West

Bengal Estate Acquisition Act being not maintainable. The trial

court arrived at a finding that there is nothing on record to show that

before September 11, 1954 the deceased defendant no. 2 being the

donee had acquired any right, title, interest and possession in the

lands mentioned in the deed of gift. The said deed was marked as

exhibit 8.

There was no indication in the said deed that the

original plaintiff gifted the suit property to the original defendant

no. 2 in the year 1944. The recital in the said deed used a word

"angikar" in bengali on the part of the original plaintiff to donate

some property to the original defendant no. 2 before his marriage.

The time of maksing such angikar was not mentioned in the deed. It

appears that the property was gifted on September 11, 1954, that is,

on the date of registration of the said deed.

From the evidence of plaintiff's witness no. 2 it appears

that his father, being the original plaintiff, did not give his eldest

daughter, Menoka, any ornament or cash at the time of her

marriage. The original plaintiff gave land measuring 23 acres 47

decimals to his eldest daughter at the time of her marriage in the

year 1944. However, such oral evidence was not corroborated with

any documentary evidence. The learned judges in the trial court as

well as the first appellate court disbelieved the explanation of

belated registration as they were of the opinion that such

explanation of belated registration was on some fictitious grounds.

The trial court as well as the first appellate court had relied upon

Section 5A of the West Bengal Estate Acquisition Act wherein

there is a specific bar with regard to transfer of any land by any

intermediary in between May 5, 1953 and the date of vesting, if in

the opinion of the State Government there are prima facie reasons

for believing that such transfer was not bona fide.

It appears from the judgments of the trial court as well

as the first appellate court that the certified copy of the Ceiling

Adjustment Case No. 3 of 1969 was not filed before the trial court.

The order passed by the learned District Judge in Misc. Case No. 8

of 1972 and the order passed by this court in C.R. 138(a) of 1970

were also not filed before the trial court. The first appellate court

rightly observed that in absence of the said orders and the

documents, it cannot be held that the order passed in the said

proceeding being Ceiling Adjustment Case No. 3 of 1969 would

operate as res judicata in the present suit for declaration and

permanent injunction, where the claim is based on a deed of gift,

which according to the plaintiff/appellant, has attained finality by

reason of its recognition by the Revenue Officer in the earlier

proceeding.

It reveals from the judgments of both the courts below

that exhibit 8 would show that the donor had promised to gift some

property to the donee prior to the marriage of the donor's daughter

with the donee and that to fulfill the promise he gifted the property

by executing the deed. There was no such recital that actual gift had

already been made in the year 1944. The trial court as well as the

first appellate court have refered to relevant recitals in the deed

which would show that before September 11, 1954 the defendant

no. 2 being the donee had acquired no title and possession in the

lands mentioned in the deed. It has been rightly pointed out by the

trial court as well as the first appellate court that even if it is

assumed for the sake of argument without admitting that there was

an oral gift in the year 1944, such gift could not be permitted in

view of Section 123 of the Transfer of Property Act. Hence, the

transfer of 23.47 acres of land made by Manmotha Nath Panja in

favour of the deceased defendant no. 6 could be held to be legal and

valid only on September 11, 1954. In the aforesaid context, the trial

court as well as the first appellate court considered the plea of res

judicata.

The contention of the plaintiff/appellant was that the

order of vesting in Ceiling Adjustment Case No. 3 of 1969 under

Section 6(I) read with Section 47 of the West Bengal Estate

Acquisition Act was barred by the principle of res judicata since the

Revenue Office which is a court of limited jurisdiction had earlier in

a 5a) proceeding case held the transfer as bona fide with the

observation that it was an actual transfer of 1944.

The trial court held that since there could not have been

any actual transfer prior to September 11, 1954, when the registered

deed of gift was executed, recognition of such transaction in the

said proceeding by the Revenue Officer could not operate as res

judicata. The Revenue Officer decided the alleged transaction of

gift in the year 1944 disregarding the provisions of law. In any

event, the Revenue Officer is not a court of law and such finding in

contrary to the provisions of law is not enforceable unless it is

registered and accepted by the donee.

In our view, the findings arrived at by both the courts

below do not suffer from any perversity. As such, we do not find

any reason to interfere with the concurrent findings of fact arrived at

by both the courts below.

Having found no substantial question of law involved

in this appeal for which the same is required to be admitted, the

same is summarily dismissed under Order XLI Rule 11 of the Code

of Civil Procedure.

There will be no order as to costs.

dns    ( Uday Kumar, J. )                                ( Soumen Sen, J. )