Calcutta High Court (Appellete Side)
Sk. Khoda Box vs Lokeman Hakim Mondal Alias on 21 March, 2022
10 21.3.2022
Sc Ct. no.8
S.A. 76 OF 2020
--------------
Sk. Khoda Box
Vs.
Lokeman Hakim Mondal alias
Lokman @ Laxman
Mr. Anit Rakshit
Mr. Sailendu Sekhar Bayerd.
...For the Appellant/
Defendant
Mr. Ayan Banerjee
Mr. Suman Banerjee.
....For the Respondent/
Plaintiff
This second appeal has come up for admission.
The appellant is aggrieved by the judgment and
decree dated 21st June, 2019 passed by the learned
Additional District & Sessions Judge, Chandernagore
affirming the judgment and decree dated 22nd March,
2016 passed by the learned Civil Judge (Jr. Div.),
Additional Court, Chandernagore in Title Suit No.108 of
2015 (New)/ Title Suit No. 130 of 2009 (Old).
Mr. Anit Rakshit, learned counsel appearing on
behalf of the appellant submits that the second appeal is
required to be admitted on the ground that both the
courts below have failed to take into consideration that
the issue raised by the appellant is required to be decided
by the competent authority under Section 21(3) of the
West Bengal Land Reforms Act, 1955.
In order to appreciate the arguments advanced by
Mr. Rakshit, it is necessary to briefly state the defenses
raised by the appellant before the trial court. The
appellant was the defendant in a suit filed by the opposite
party for declaration of title and injunction.
The plaintiff in the suit has alleged that original
plot no. 190 comprising of an area of 36 decimals
belonged to the father of the plaintiff viz. Sk. Jahad Box.
Sk. Jahad Box executed and registered the Deed of Gift
on 17th March, 1975 in favour of the plaintiff. By virtue
of the said Deed of Gift, the plaintiff became the owner
and was in possession of the entire plot.
A few years ago, D.V.C acquired 4 decimals of land
in plot no. 190. A canal was made on the said plot. In
L.R. Record of Rights two separate plots were mentioned
viz. plot no. 190 in the Western side of the canal having
an area of 16 decimals and plot no. 190/1350 having an
area of 6 decimals in the Eastern side of the canal.
The plaintiff, due to financial need, decided to sell
16 decimals of land situated in the Western side of plot
no. 190. Accordingly, he sold such portion of the land in
favour of different purchasers, keeping remaining 1
decimal of land in the plot no.190. In the month of
October, 2008, he decided to sell remaining portion as he
was in financial stringency and the defendant offered to
purchase the said 1 decimal of land in plot no. 190 and
the pond (doba) in plot no. 2921 at a consideration of
Rs.8000/- for the land and Rs.3000/- for the pond (doba).
On instruction of the defendant, the plaintiff executed
and registered the Sale Deed after receiving a sum of
Rs.11000/-. The defendant paid Rs.11,000/- but it is
alleged by the defendant that in collusion with the deed
writer and witnesses the plaintiff has written the dag
number as 190 in place of dag no. 190/1350 and the
total area has been written as two (2) decimals land in
place of six (6) decimals of land in the said deed of sale
dated 17.10.2008, which is absolutely false. Following
the execution of the said Deed the defendant was put into
possession in plot no.190. On 12th November, 2009 the
defendant threatened to dispossess the plaintiff in respect
of the plot no.190/1350 situated in the Western side of
the D.V.C. canal describing the 'A' Schedule property in
the plaint.
The defendant filed a written statement along with
the counter-claim. It is alleged that the defendant is an
illiterate and poor farmer. In the year 1994 the plaintiff
inducted the defendant as a 'bargadar' in respect of 6
decimal of land in the plot no. 190/1350. Since the
defendant has been cultivating the same sharing crops,
on 30th March, 1996 the plaintiff wanted to sell the said
property and in presence of the local persons of the
village, 6 decimals of land within plot no.190/1350 was
fixed at Rs.28,000/- and the price of the pond (doba) was
fixed at Rs.2000/-. The defendant paid Rs.30,000/- to
the plaintiff. The defendant, however, did not execute the
title deed. In the meantime, when the defendant
improved the said land the plaintiff being jealous to the
improvement made by the defendant, demanded further
money. The defendant in the counter-claim has alleged
that the plaintiff through the deed writer and the
witnesses erroneously described the property sold as two
(2) decimal in plot no. 190 in Schedule of the deed in the
year 1996. The plaintiff had no property measuring 1
decimal in the plot no.190 at the relevant time. The
defendant, however, alleged that he did not purchase 1
decimal of land in the Western side of D.V.C. canal.
In view of the fact that the only issue raised before
us was that both the courts below having regard to the
pleadings, ought to have referred the matter to the
competent authority for consideration under Section 21(3)
of the West Bengal Land Reforms Act, 1955, we referred
to the pleadings briefly to find out whether the dispute
raised is at all required to be adjudicated by the
competent authority. For better understanding of the
matter, we set out Section 21 (3) of the West Bengal Land
Reforms Act, 1955.
"S.21(3) If any question as to
whether a person is or is not a bargadar arises
in the course of any suit case, appeal or other
proceedings before any Civil or Criminal Courts,
the Court shall refer it to the officer or the
authority mentioned in sub-section (1) of section
18 for decision and such Court shall dispose of
the suit, case, appeal or other proceedings in
accordance with the decision communicated to
it by the officer or authority mentioned in sub-
section (1) of section 18 to whom the question
was referred."
If the defendant would have taken the plea that the
property has been sold to some other person but he is
cultivating the land as a 'bargadar' and as such he has a
preferential right then the question would have been
otherwise and in that case a genuine question regarding
bargadarship would have been raised before the Court to
decide the question of preferential right in which case the
matter should have been adjudicated by the competent
authority under Section 21(3) of the West Bengal Land
Reforms Act, 1955. But no such question has been raised
in the present context. The real dispute is whether 'A'
Schedule property was a plot sold to the defendant and
no question of preferential right has been raised in the
present context.
It is not in dispute between the parties that
defendant was cultivating as a 'bargadar'. The real
disputes which have emerged with regard to the
description of the plot and the consideration price with
regard to 'A' Schedule property in the concerned deed. In
view of the fact that the said adjudication does not call for
any question as to whether a person is or is not a
'bargadar'', reference under Section 21(3) of the West
Bengal Land Reforms Act, 1955, in our considered
opinion, cannot have any manner of application. In view
thereof, since no other issues have been argued before us
and we find that there are concurrent findings of fact by
both the courts below with regard to the declaration of
ownership of 'A' Schedule property in favour of the
plaintiff, we do not find any reason to admit the second
appeal.
Accordingly, the second appeal is not admitted and,
accordingly, dismissed.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
