Anil Chandra Das vs Rabin Debnath & Ors
2023 Latest Caselaw 1408 Cal

24.02.2023
SL No.22
Court No.8
    (gc)


                          SAT 269 of 2016

                        Anil Chandra Das
                               Vs.
                     Rabin Debnath & Ors.
                 (Nimai Debnath since deceased)

                                      Mr. Gouranga Kumar Das,
                                      Ms. Swati Mandal,
                                                   ...for the Appellant.


                 We    have   heard    the    learned   Counsel   for   the

             appellant.

                 The appeal is arising out of a judgment and decree

             passed on 4th April, 2016 by the learned Additional

             District Judge, Kakdwip, South 24-Pargranas affirming

             the judgment and decree dated 29th April, 2013 passed

             by the learned Civil Judge (Junior Division), Kakdwip in

             a suit for declaration of right, title, interest and

             permanent injunction. Both the Courts have arrived at

             a finding that the plaintiff was unable to prove its title

             to the property.     Both the Courts relying upon the

             decision of the Hon'ble Supreme Court reported in AIR

             1964 SC 136 observed that the plaintiff has failed to

             prove the chain of title, his possession and nature of the

             land over which the plaintiff claims ownership.

                 Mr.   Gouranga       Kumar     Das,    learned   Advocate

             appearing on behalf of the appellant has submitted that

             the title of the plaintiff is adequately established from

             the sale deed exhibited in the said proceeding and there
                2




is no proof that the property was acquired by the State.

It is also submitted by Mr. Das that there is no proof

regarding issuance of homestead patta either in respect

of L.R. Plot No.4513 or L.R. Plot No.4512 and the mere

finding by the enquiry officer with regard to the nature

of the property as homestead is not sacrosanct.       It is

submitted that both the Courts have failed to appreciate

that the property purchased by the plaintiff is the Bastu

along with a small pond adjacent to it and there is no

evidence on record to show that it was ever treated as a

homestead land.

    We have carefully read the judgments of the Trial

Court as well as the First Appellate Court.      The Trial

Court has considered the factual aspect of the matter

and the evidence in great detail.     The plaintiff claims

right, title and interest over 5 decimals of land out of 13

decimals in R.S. Plot No.2932/7506 corresponding to

L.R. Plot No.4513.    The plaintiff produced three sale

deeds all dated 27.04.1985 to prove his ownership. He

claimed to have sold 8 decimals of land by executing a

registered sale deed being No.4465 dated 12.04.1996.

The plaintiff in his chief has stated that the respondents

have clandestinely managed to obtain homestead in

respect of 13 decimals of land which was subsequently

cancelled by the J.L.R.O. Kakdwip by an order dated

26.05.1986. During the cross-examination he has

admitted that he was out of possession from the year

2009. Defendants have got the homestead patta in

respect of the suit dag measuring about 13 Satak (dated

10.09.2012). The entire 5 decimals of the suit property

are being unauthorizedly occupied by the defendants.

He admittedly could not identify the portion of the land

forming dag no.4513 measuring about 5 decimals out of

13 decimals over which he has claimed ownership about

the nature of the land he stated that it is a small doba

whereas in the L.R.R.O.R. the said land was mentioned

as Bastu land. The plaintiff in his evidence has stated

that he purchased 3.5 decimals of land from one Sankar

Prosad Samanta on the basis of Panchayat Certificate.

The rest of the property he claimed to have purchased

from one Bhabani Prosad Samanta on the basis of

Panchayat Certificate. He did not make any further

enquiry with regard to the right, title and interest of the

Bhabani or Sankar independently. The appellant also

admitted that Plot Nos.7507, 7252 and 7746 were

recorded in the name of Kedar Nath Bhagat and Motilal

Bhagat and the defendants are in possession of Plot

Nos.7507, 2930/7252 and 2933/7746 by making

construction thereof. He also admitted that the land he

alleged to have purchased does not contain the

description of the boundary of the land and the real

picture and status of the suit land can only be

established by examination of any survey passed

commissioner. He did not apply for appointment of any

survey passed commissioner for proper identification of

the suit plot. During his cross-examination, the

enquiry report by the B.L.L.R.O. and the order passed

in Misc. Case No.29/1999 were marked as Exhibit-B

Series. The certified copy of the order passed by

W.B.L.R.T.T. in O.A. No.142/99 was also marked as

Exhibit-C on behalf of the respondents. The

respondents in support of their claim over 13 decimals

of land have relied upon the relevant Khatians and the

ROR. They have referred to the proceedings initiated by

them by filing a writ petition for rectification of the ROR.

They have disclosed the order by which the Revenue

Officer was directed to record 13 decimals of land of

R.S. Plot No.2932/7506 in their favour. They have

specifically stated that Snehalata Samanta, Binata

Bhakta and Bhabani Prosad Samanta had no right, title

and interest over the suit plot. They have no

transferable interest. During cross-examination, the

defendants have stated that there is no pond in the suit

plot and in this regard he has relied upon Exhibit-B.

The said document is vital as it would appear from the

order that a direction was passed for cancelling the

name of Anil Chandra Das, the plaintiff herein from the

R.S. Plot No.2932/7506 corresponding to L.R. Plot

No.4512 of Mouza - Ganeshpur in compliance of the

order in the writ petition No.25177 of 1997 by which

B.L.L.R.O, Kakdwip was directed to dispose of the

representation dated 6th November, 1997 of the

respondents. On the basis of the aforesaid direction,

the Misc. Case No.29 of 1999 was initiated and in the

said proceeding, an order was passed cancelling the

earlier order recording the name of the plaintiff was set

aside. The said order was unsuccessfully challenged

before the W.B.L.R.T.T. The writ petition filed against

the said order was also not pursued. Apart from the

aforesaid, the observation of the Appellate Court with

regard to the homestead patta is relevant. The

observations are:-

"At the time of argument a new issue has been raised by the plaintiff regarding issuance of homestead patta either in respect of L.R. Plot No.4513 or L.R. Plot No.4512. From the order sheet of Misc. case no.29/1999 (Ext.-B) filed before the B.L & L.R.O., Kakdwip it is found that the alleged homestead patta has been issued in the name of defendants in respect of R.S. plot no.2932/7506 corresponding to L.R. plot no.4512 measuring about 13 decimals. Although, it is found from the sketch map of Enquiry Report (Ext.-B(i) submitted by Amin attached to the B.L & L.R.O, Kakdwip that corresponding R.S plot no.2932/7506 is L.R plot no.4513. Not only that to resolve the aforesaid dispute I have given a direction (order no.35 dated 28.02.2013) to the concerned B.L & L.R.O, Kakdwip to submit a report on the three specific point. After communicating the said order, the B.L & L.R.O., Kakdwip submitted his report which has been marked as Ext.-F. From the Ext.-F it is crystal clear that the corresponding R.S plot no.2932/7506 is L.R.

plot no.4513 measuring about 13 decimals nor the L.R plot no.4512. From Ext.-F it is also found that corresponding L.R. no.4512 are R.S. plot no.2933/7507 and 2933/7255 respectively measuring about 5 decimals nor 13 decimals."

It would be evident from the evidence on record that

the entire 13 decimals of suit plot of land has already

been vested by the State of West Bengal in favour of the

defendants by virtue of Misc. Case No.29/1999 that is

prior to the acquisition of the land by the plaintiff. The

plaintiff also could not produce any

Khazna/Government rent receipts from 1986 onwards.

The orders of B.L.L.R.O in Misc. Case No.29/1999 (Ext.-

B) was not disturbed by any Court. In fact, the

proceeding attained its finality by virtue of the order

passed by W.B.L.R.T.T.

The concurrent findings of fact unless are perverse

should not be taken lightly in a second appeal. We do

not find any substantial question of law involved in this

second appeal.

The second appeal, accordingly, stands dismissed at

the admission stage.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual

undertaking.

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