Calcutta High Court (Appellete Side)
Ct-08 vs Ram Singh Sardar & Ors on 23 September, 2022
44 23.9.2022 SA 24 of 2022
Banamali Mahato
Ct-08 Vs.
Ram Singh Sardar & Ors.
ar
Mr. Uttiya Ray
Mr. Arnab Mondal
... For the Appellant
The appellant is not represented, nor any
accommodation is prayed on his behalf.
The appeal was presented in the year 2006.
Thereafter, it was registered as SA 24 2022.
The appeal initially appeared in the list on 1st
October, 2021 when the appellant was not
represented and the then coordinate bench
directed for listing the matter on 7th October,
2021 for dismissal.
Thereafter, this matter appeared on 9th
September, 2022 and is appearing in the list
since then.
Today, an adjournment is prayed for on
behalf of the appellant. However, we are not
inclined to grant such relief. We invite the
appellant to argue the matter. Learned advocate
appearing for the appellant, however, expresses
his inability to proceed with the appeal.
Therefore, We propose to decide the question of
admission of the present second appeal on the
basis of the materials available on record.
The judgment and decree of affirmation dated
March 28, 2006 passed by the learned Additional
District Judge, 1st Court, Purulia, in Title Appeal
No. 44 of 2001 arising out of judgment and decree
dated February 22, 2001 passed by the learned
2
Civil Judge(Junior Division), Purulia, in Title Suit
No. 303 of 1991 is the subject matter of challenge
in this appeal.
The plaintiffs' case is that the schedule 1
properties belonged to one Sonatan Singh Sardar,
the father of the present plaintiffs in exercising his
raiyati right cultivated in the suit properties and
the said properties were duly recorded in R.S.R.O.R
in the name of Sonatan Singh Sardar. During the
lifetime of Sonatan he was in exclusive possession
of schedule 1 properties along with other properties
and after his death, the plaintiffs as heirs have
inherited the suit properties and other properties.
The plaintiffs asserted that they have been
cultivating the suit properties for more than 30
years openly as raiyat in assertion of their raiyati
right adversely by denying the title and to the
knowledge of all including defendant no. 1. On
such basis, the plaintiffs claimed title.
On 1st May, 1991 the defendant no. 1 resisted
the plaintiffs in cultivating the land and threatened
to dispossess the plaintiffs from the suit properties.
The plaintiffs contended that the defendant no. 1
has no right, title and interest in respect of
schedule 1 property. Sonatan Singh Sardar never
executed any deed in favour of defendant no. 1 in
respect of schedule 1 property.
The defendant no. 1 and the defendant nos. 1 to
4 contested the suit by filing separate written
statement. The defendant no. 1 contended that the
plaintiffs are not in possession of any portion of the
suit land within 12 years, prior to the filing of the
suit. They have raised issue like the suit is barred
by law under the provisions of Section 34 of
Specific Relief Act and the suit is under valuation of
the suit property.
3
It is stated by the defendant no. 1 that the suit
land described in the plaint previously belonged to
Sonatan Singh Sardar in tenure right and about 52
years back Sonatan settled the suit land to the
father of the defendant no. 1, namely, Haripada
Mahato. Sanatan alleged to have delivered the suit
land to Haripada and since them Haripada was in
possession thereof in exercising raiyati right. After
the death of Haripada, his son, defendant no. 1,
Sripati Mahato, Jyoti Mahato came over in
ownership and possession of the suit land but
during the time of such R.S operation, the suit land
was erroneously recorded in the name of Sonatan
Singh Sardar. As there were no document in
favour of defendant no. 1, the defendant no. 1
along with his brother requested to execute a sale
deed in their favour and for that they paid
Rs.8,000/- to Sonatan and after receiving the said
amount Sonatan registered a sale deed on
25.9.1970
in respect of the suit land and another
land. According to defendant no. 1, Sonatan being
misguided by some enemies, he filed an application
before the Additional Deputy Commissioner,
Purulia, under Section 46A(2) of the Chotonagpur
Tenancy Act against the defendant no. 1 and his
brother and subsequently Additional Deputy
Commissioner was pleased to hold that the
transaction was made beyond lthe mischief period
of the said Act and dropped the said proceeding on
the prayer thereby admitting right, title and interest
of the defendant no. 1 and his brothers.
During the time of revisional settlement
operation under the provisions of West Bengal Land
Reforms Act, the land were recorded in the name of
defendant no. 1 and his brother under R.S Khatian
no. 127, 150 and 165. R.S.R.O.R was finally
published according to their respective shares.
However, the plaintiffs did not prefer any appeal
under Section 51A of the W.B.L.R Act against such
finally published of record of right.
The defendant nos. 2 to 4 contended that the
plaintiffs have no cause of action to file the suit and
the same is barred by limitation.
It is the case of the defendants that the land in
question originally belonged to predecessors of the
plaintiffs vide case no. 32/84-85, the owner of the
property by obtaining permission from Additional
Deputy Commissioner, Purulia to sold the suit
property in favour of defendant no. 1. During the
initial stage of R.S operation, the property in
question was recorded in the name of Sonatan.
Banamali Mahato and others filed an objection
under Section 51A(1) of the W.B.L.R Act for
correction of record-of-rights and objection case no.
1 was started and after hearing both the parties
passed an order in the said proceeding in the name
of Banamali Mahato in place of Sanatan Singh
Sardar. The present R.S Khatian no.127 of mouza
Madhuban has been prepared in the name of
Banamali. Therefore, the defendant no. 1 as well
as the defendant nos. 2 to 4 have prayed for
dismissal of the suit with cost.
In contesting the said matter both the parties
adduced oral and documentary evidence. On the
basis of the aforesaid evidence and the plaintiffs
having failed to prove their right, title and interest
in respect of the property in question and also
having regard to the fact that the father of the
plaintiffs have sole the property after the mischief
period was over, the suit was dismissed.
The first appellate court has affirmed the said
decree passed by the trial court with a modification
that the plaintiffs shall have their right to reagitate
the matter before the Revenue Officer as per the
provision of Section 14D read with Section 14E of
the W.B.L.R Act regarding the alleged transfer
dated 25th September, 1970 alleged to have been
executed by Sanatan in favour of Banamali Mahato
and others.
The reason for giving such right to the plaintiffs
was that the learned Judge after considering all the
facts including the order of the learned Additional
Deputy Commissioner vide Exhibits B and C and
also the impugned deed, Exhibit-A found that the
Commissioner acted illegally because the impugned
deed was executed on 25th September, 1970 after
the W.B.L.R Act came into operation within Purulia
district and admittedly there is a mandatory
provision of Section 14D read with Section 14E of
the W.B.L.R Act for determination regarding any
transfer made by any schedule tribe person in
favour of any non-tribal person.
In terms of the aforesaid provision, the
Additional Deputy Commissioner of Purulia ought
to have referred the matter to B.L & L.R.O as per
provision of Section 14D read with Section 14E of
the W.B.L.R Act, as the time of filing application by
Sanatan in the year 1984-85 Chotonagpur Tenancy
Act was not in operation in Purulia district but
W.B.L.R Act already came into operation. It was a
clear mistake that was noticed by the first appellate
court in modifying the decree passed by the trial
court.
Based 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 will be no order as to costs.
(Uday Kumar ,J.) (Soumen Sen, J.)
