Sri Tarun Kanti Mondal vs Srimatya Doli Mondal
2023 Latest Caselaw 3402 Cal

S/L 18
16.5.2023

Court No.652 SD CO 1271 of 2021

Sri Tarun Kanti Mondal Vs.

Srimatya Doli Mondal

Mr. Asit Kumar De Mr. Prasit Kr. Sinha ... for the Petitioner.

Mr. Mukteshwar Maity Ms. Nupur Chaudhuri ... for the Opposite Party.

Being aggrieved and dissatisfied with the Order No.67

dated 16.4.2021 passed by the learned Civil Judge (Senior

Division), First Court at Contai, Purba Medinipur in Title

Suit No.165 of 2011, present application under Article 227 of

the Constitution of India has been preferred.

Petitioner contended that the opposite party being

plaintiff filed aforesaid suit for partition for declaration of

her half share in the 'Ka' schedule property. The defendant

filed written statement and denied all material allegations.

During the final stage of hearing of the suit, the

petitioner/defendant filed an application under Section 21(3)

of the West Bengal Land Reforms Act, 1955 (in short 'Act of

1955') stating that the eastern side 56 decimal of land in 'Ka'

schedule suit plot no.387 belonged to Satish Mondal. In

1385 B.S. said Satish Mondal appointed the

petitioner/defendant as bargadar in his eastern side 56

decimal portion and accordingly the name of the petitioner

was recorded as bargadar in the settlement record. The

defendant/petitioner paid bhag produce to Satish Mondal on

good faith without any receipt and after demise of Satish

Mondal the petitioner/defendant also paid bhag produce to

the legal heirs of Satish Mondal in the same manner. The

legal heirs of Satish Mondal on 23.5.2011 sold out said half

share of 'Ka' schedule property by a registered deed in favour

of the plaintiff/opposite party. The plaintiff at the time of

her deposition denied the bargadarship of the petitioner in

the eastern side 56 decimals of land in plot no.387.

Accordingly, the defendant filed the said application under

Section 21(3) of the Act of 1955 contending that for complete

and effective adjudication of the matter, the issue as to

whether the petitioner is a bargadar or not in respect of said

portion of suit property, the question may be referred for

adjudication to the prescribed authority under the provisions

of Section 21(3) of the Act of 1955. Learned court below after

hearing both the parties was pleased to reject the said

application with a cost of Rs.2,000/-.

Being aggrieved by that order, learned counsel

appearing on behalf of the petitioner submits that since the

plaintiff has denied petitioner's bargadarship right in his

evidence, so he had preferred the said application for

adjudication but learned court below failed to appreciate the

same and court below further failed to appreciate that the

petitioner is the bargadar in respect of 56 decimal of land in

plot no.387 in eastern side from 1385 B.S. since the time of

Satish Mondal and it is not a fact that the petitioner is

claiming bargadarship after the plaintiff's purchase in the

year 2012. Learned Court below further failed to appreciate

that suit schedule land was partitioned between the then co-

sharers in 1953 and further partition of same land in not

necessary.

He further submits that the determination as to

whether the petitioner is a bargadar or not in respect of the

suit property can only be made by the revenue officer and

the civil court has no jurisdiction to decide the same. As

such, he has prayed for setting aside the order impugned.

Learned counsel appearing on behalf of the opposite

party submits that the issue involved in the present suit does

not relate to determination as to whether the

defendant/petitioner is a bargadar in respect of the suit

property or not. This is simplicitor suit for partition

amongst the parties and as such, without having

determination as to the right of bargadarship, the issue

involved in the present suit can very well be adjudicated.

Accordingly, he submits that the order impugned does not

call for any interference.

I have considered the submissions made by both the

parties.

Aforesaid Title Suit No.165 of 2011 has been filed for

partitioning 'Ka' schedule property which is measuring 1 acre

12 decimals. Accordingly, the case of the parties is that the

plaintiff is owner of 50% share of the said property

measuring 56 decimal and the defendant Tarun Kanti

Mondal is the owner of rest 56 decimal of land. Now, the

defendant's contention is that said Tarun Kanti Mondal is

the owner of 56 decimal of land in the western part and he is

also a bargadar under the plaintiff in respect of the rest 56

decimal of land in the eastern part owned by the plaintiff.

On perusal of prayer of Plaint it appears that Plaintiff

has prayed for passing preliminary decree declaring his half

share in the 'Ka' schedule suit property and if parties fail to

make partition by metes and bound within the time fixed by

court in terms of preliminary decree then for appointment of

commission and to pass final decree. Defendant has not filed

any document or evidence before this court to show that in

1953, the 'Ka' schedule suit property was partitioned

between the then co-sharers. Petitioner herein claimed that

he is not only owner of half share in western side of 'Ka'

schedule but he is also bargadar in respect of half share of

land in eastern side owned by plaintiff/opposite party

herein. Since there is nothing to show that suit property was

earlier partitioned and when suit has been filed for effecting

partition in respect of 'Ka' schedule suit property, it is too

early to conclude that plaintiff is owner of eastern side 56

satak of land or defendant is owner of 56 satak of land in

western side. The question involved in the present suit is

whether defendant in a co-sharer in respect of suit property

or not and if he is a co-sharer to what extent. Since issue

involved in the present suit relates to title, court is under no

obligation to make a reference under section 21(3). The

question as to whether the defendant/petitioner is a

bargadar in respect plaintiff's share of land or not, is not

required to be adjudicated in the present case and as such,

reference under Section 21(3) of the Act of 1955 is completely

uncalled for in the present context. Accordingly, I find that

the order impugned does not call for any interference.

Accordingly, CO 1271 of 2021 is dismissed.

However, from the order impugned it appears that the

suit has attained at its final stage for delivery of judgment

and accordingly, the court below is directed to dispose of the

suit in preliminary form within a period of six weeks from

the date of communication of the order.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)