Smt. Lalsa Thakur vs Sri Pradip Singh & Ors
2022 Latest Caselaw 1316 Cal

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE

BEFORE:

The Hon'ble Justice Soumen Sen and The Hon'ble Justice Ajoy Kumar Mukherjee

SA 114 OF 2021

Smt. Lalsa Thakur Vs.

Sri Pradip Singh & Ors.

For the Appellant                   : Mr. Bhaskar Ghosh, Sr. Adv.
                                      Mrs. Usha Maiti, Adv.
                                      Mr. Sakya Maity, Adv.


Order dated : 21.03.2022

Soumen Sen, J.(Oral): This second appeal has come up for

admission. Mr. Bhaskar Ghosh, learned senior counsel appearing for the

appellant, submits that the appeal is required to be admitted on the

ground that both the courts below on misconception and misreading of

materials on record along with Section 3A of the West Bengal Land

Reforms Act, 1955 arrived at a wrong finding.

The second appeal is arising out of the appellate judgement and

decree dated 27th May, 2019 passed by learned Additional District Judge,

5th Court, Paschim Medinipur, in Title Appeal No. 130 of 2010 affirming

the judgement and decree dated 20th September, 2010 passed by learned

Civil Judge (Junior Division), 1st Court Paschim Medinipur, in Title Suit

No. 136 of 1995.

The plaintiff has filed a suit for declaration and injunction. The

plaintiff alleged that the suit property consists of two plots, previously

belonged to one Balai Singh. At the relevant point of time, the suit land

was barren land. The plaintiff's father-in-law Jang Bahadur Thakur at

the relevant time was dealing with dairy business in Midnapore town and

in search of a suitable place in Midnapore town for doing the said

business in 1965 he approached Balai Singh for getting the suit land on

lease. At the instruction of Balai Singh, the plaintiff's father-in-law

levelled the suit land and removed the bushes.

In view of the fact that the plaintiff with the intervention of her

father-in-law and through her husband approached to the owner of the

suit land Balai Singh for yearly lease of the suit land. In 1965 Balai

agreed to give the suit land on lease @ Rs.5/- per annum in favour of the

plaintiff. In the year 1981 the plaintiff constructed a 'pucca' two rooms

along with service privy and used to reside with her family there.

In view of the amendment of West Bengal Land Reforms Act, 1981,

the right, title and interest in the suit property of the land owner Balai

Singh was vested to the State and the plaintiff being the yearly tenant of

the suit land, as per the provision of said Act, became the direct tenant

under the State of West Bengal. Though the plaintiff was residing at the

suit land having right, title and interest by virtue of amendment of West

Bengal Land Reforms Act, 1981 in the last L.R. settlement, the suit land

was erroneously recorded in the name of Balai Singh as owner and the

name of the plaintiff was recorded as permissive possessor under Balai

Singh.

In view of the fact that the plaintiff became raiyat under the WBLR

Act as per provision of the Amendment Act, the plaintiff made a claim for

correction of the L.R record by including her name as raiyat in respect of

the suit land. Although record of rights previously mentioned the

plaintiff as permissive possessor and she was enjoying the suit property

without any resistance or interpretation.

Balai Singh died leaving behind his sons, the defendants. The

plaintiff has been possessing the suit property for more than 30 years

having knowledge of the actual owner Balai Singh. The plaintiff

accordingly claimed ownership by way of adverse possession. It is also

alleged that on 18th June 1995 on the basis of erroneous recording in the

ROR the defendants wanted to disturb the possession of the plaintiff from

the suit land, which resulted in the present suit.

The defendants entered in the suit and filed written statement. In

the written statement the defendants claimed that Balai Singh was

tenant under Amarendralal Khan, zamindar of Narajal, upon payment of

tax of Rs.5/- yearly in respect of plot no. 408/690 and plot no. 409/92.

In the R.S.R.O.R the suit land was recorded in the name of Balai Singh,

predecessor of the defendants. While Balai Singh has been enjoying the

property, he died leaving behind his four sons, three daughters and wife

as his legal heirs. Subsequently, his wife died. At the L.R settlement the

suit property was recorded in the name of Balai Singh in L.R parcha.

Balai Singh never gave the suit land on lease either to the plaintiff or her

father-in-law. The plaintiff or her father-in-law never possessed the suit

land on the basis of any such lease and they have no right to acquire in

respect of the suit land. Balai Singh was in possession of three plots of

land, where he long before constructed houses thereon and inducted

several tenants. Sons of Balai Singh inducted the plaintiff's father-in-

law, Jang Bahadur Thakur as tenant at a rent of Rs.35/- per month in a

room of plot no. 409 constructed by the father of the defendants made

with bamboo chite-berah.

The defendant no. 2 used to issue receipt on payment of rent to

Jang Bahadur Thakur and Jang Bahadur Thakur brought the plaintiff in

the suit plot. The plaintiff on the vacant land by the side of the said

house forcibly tried to construct house which the defendants objected

and thereafter since October 1995 they did not pay any rent in respect of

the suit premises.

On the basis of oral and documentary evidence, the trial court

framed 11 issues. Issue no. 8 relates to applicability of Section 3A of the

West Bengal Land Reforms Act, which has also now become relevant in

view of the submission made by the appellant. The said issue was

addressed by the trial court being Issue no. 8 in the judgment along with

other issues. In answering the said issue against the plaintiff, the trial

court has recorded that there was no evidence before the court that after

amendment act of WBLR Act the total land held by Balai or his

predecessor, is in excess of the ceiling area under Section 14M and after

retaining of any such non-agricultural land by Balai or his predecessor,

any portion of land of Balai vested to the State.

On the trial Exhibit A to Exhibit F conclusively show that the suit

land was all through record in the name of Balailal. It is alleged that the

claim of the defendants based on such exhibits. Moreover, no document

of vesting of any land or the suit land of Balai was produced before the

trial court. Rather it appears from the evidence and more particularly in

L.R Porcha, (Exhibit-F) that the suit land was recorded in the name of

Balailal. The question of vesting the land under Section 3A of the West

Bengal Land Reforms Act was never established before the trial court.

The first appellate court while agreeing with the finding of the trial

court has taken into consideration the deposition of D.W 1. D.W 1 during

cross-examination stated that the suit land was forcibly occupied by the

plaintiff, in which the plaintiff had constructed the cowshed with pucca

pillar.

The evidence of P.W 1 was also crucial to the issue raised by Mr.

Ghosh. P.W 1 during his cross-examination stated that he could not

recollect the plot number, which was alleged to have been given on lease

by Balai in favour of his father. He could not recollect the plot,

wherefrom he alleged to have started business. He also could not

produce any settlement in the fact. He admitted during cross-

examination that the plaintiff was residing in the suit property as

permissive occupier, which corroborates L.R.R.O.R. He also could not

establish his right, title and interest in the suit land. Plaintiff contented

that Balai had given their suit land on lease in 1965 @ Rs.5/- per annum

but he failed to show that any such lease was registered in compliance

with Section 107 of Transfer of Property Act.

Mr. Ghosh in all fairness submits that he is not arguing on the

acquisition of title by way of adverse possession.

In order to attract Section 3A of W.B.L.R Act it has to first establish

that the land is a non-agricultural land. Every barren land cannot be

considered as non-agricultural land. The plaintiff has to prove at the

trial that the land in question was a non-agricultural land and the right

of Balai was vested in the State in view of the Provision of W.B.L.R Act,

1955. The plaintiff has failed to establish any relationship as landlord

and tenant between the plaintiff and the defendants or there has been

any payment of rent by the plaintiff to the defendants for occupation of

the property in question. It is also important to note that the plaintiff

has failed to produce any single document to show that any rent receipt

was ever issued by Balai in favour of the plaintiff in respect of the suit

property. The contention of the plaintiff is that at the time of giving

amount Balai gave oral settlement with assurance to execute document

to that effect after one year.

The purported admission by the defendants that the father-in-law

of the plaintiff was occupier as monthly tenant. This type of stray

sentence by the defendants cannot be of much relevance, as the plaintiff

has to prove his case by producing cogent and acceptable evidence.

However, the said evidence does not say that the nature of tenancy of

father-in-law of the plaintiff was of non-agricultural tenant and the

father-in-law as under tenant of Balai had obligation to make payment of

rent to the plaintiff. There is no evidence to show that Balai's interest in

respect of the suit plot was ever vested in the State.

These are all factual enquiries made by the trial court as well as

the first appellate court on the basis of evidence on record. However, at

this stage we record that Mr. Ghosh is relying upon an application to

show to produce certain rent receipts showing that rent was paid to

Balai. The suit was filed in the year 1995 and now it is in the year 2022.

The said application, relying upon by Mr. Ghosh, is now sought to be

filed as additional evidence.

Order 41 Rule 27 relates to certain criteria for production of

additional evidence before the appellate court. It requires that the parties

seeking to produce additional evidence must establish notwithstanding

the exercise of due diligence such evidence could not be produced.

These 25 years are too long a time for the appellant to resurrect. In

fact, specific question was put to different witnesses of the plaintiff at the

trial with regard to the existence of rent and all the witnesses of the

plaintiff at that time admitted that they were not in possession of any

rent receipt. Even P.W 1 during cross-examination has clearly stated

that he does not know the basis of claim made by the plaintiff. It was

open to the appellant even at the first appellate stage to cure the defects

or approach appropriate authority for correction of record of rights.

Admission of second appeal has to be decided on the basis of

available record to see whether there is any substantial question of law

involved in the appeal. In absence of any such question of law we are not

inclined to admit this second appeal.

The findings arrived at by the both the courts below cannot be said

to be perverse.

On such consideration, we do not find any merit in the second

appeal.

The second appeal is, therefore, summarily dismissed under Order

XLI Rule 11 of the Code of Civil Procedure.

There shall be no order as to costs.

    I agree



     (Ajoy Kumar Mukherjee,J.)                 (Soumen Sen, J.)