Sri Sanatan Hazra & Ors vs Sri Sankar Narayan Mal
2023 Latest Caselaw 7271 Cal

             IN THE HIGH COURT AT CALCUTTA

                 Civil Appellate Jurisdiction

                          Appellate Side

     Present:

     The Hon'ble Justice Md. Shabbar Rashidi

                          SA No. 55 of 2018

      I.A. NO: CAN 2 of 2017 (Old NO: CAN 2475 of 2017)

                    Sri Sanatan Hazra & Ors.

                                 Versus

                     Sri Sankar Narayan Mal

     For the Appellants      : Mr. Shyamal Chakraborty, Adv.
                             : Ms. Anjana Das, Adv.
                             : Mr. Bikramjit Mandal, Adv.
     For the Respondent      : Mr. Gopal Chandra Ghosh, Adv.
                             : Mr. Bhakti Prasad Das, Adv.


     Hearing concluded on : September 09, 2023
     Judgment on             : October 18, 2023
Md. Shabbar Rashidi, J.

1. By filing the instant appeal, the appellant has

assailed the judgment and decree dated August 28, 2006

passed by learned Civil Judge (Senior Division), Tamluk

in Title Appeal No. 34 of 2003 arising out of judgment

and decree dated May 13, 2003 passed by learned First

Civil Judge (Junior Division), Tamluk in Title Suit No.

157 of 1999.

2. It was the case of the plaintiff/appellant that the

suit properties were under occupation of one Patit Paban

Hazra. The said Patit Paban Hazra was a landless person

and was in possession of the suit properties from before

1975. The said land, being in occupation of the said Patit

Paban Hazra, vested into the State in terms of the

provisions of West Bengal Acquisition Of Homestead

Land for Agricultural Labourers, Artisans and Fishermen

Act, 1975.

3. Upon such vesting, the suit properties were settled

in favour of Patit Paban Hazra by the competent

authorities under the said Act of 1975. During such

possession of the suit properties, Patit Paban Hazra died.

The plaintiffs/appellants being legal heirs of Patit Paban

Hazra inherited the suit properties and have possessed

the same to the knowledge of all concerned.

4. The suit properties appertained to RS plot No. 323

measuring 64 decimals. In the LR settlement, 5 decimals

out of the said 64 decimals in plot No. 323, upon vesting

under the Act of 1975, were recorded in the name of the

legal heirs of Patit Paban Hazra under LR Plot No.

323/3494. The remaining 59 decimals therein were

recorded as original LR plot No. 323.

5. It was further case of the plaintiff/appellant that the

predecessor-in-interest of the plaintiff had residential

house in the aforesaid 5 decimals. On the death of the

predecessor-in-interest, the 'chitebera' construction over

the said plot was demolished, for which, the

plaintiff/appellants constructed a new house in the land

which has been acquired by them by virtue of purchase,

gift and exchange. It was further stated that though,

there was no structure standing on the property but the

plaintiffs/appellants have been in possession of 15

decimals in the plot by growing crops thereon. Besides,

the plaintiffs also had residential house, tank and trees

over the non-suited plot No. 323.

6. It was further case of the plaintiff/appellants that in

order to grab the suit property, the

defendants/respondents stacked bricks, sands etc. over

the suit property. When the plaintiffs/ appellants raised

objection, the respondents/defendants denied the title of

the plaintiffs over the suit properties on September 18,

1989. They also gave out to construct a residential house

over the suit properties having no manner, right, title and

interest over it.

7. On the other hand, the respondent/defendants

came up with a case that Plot No. 323 measuring 64

decimals was recorded in the name of Gobind Bar and

Amar Bar in the Cadestral Survey Record of Rights

(CSROR). In the RS ROR, the aforesaid 64 decimals came

to be recorded under RS khatian No. 217 and 218 in the

name of Anudhwaj Bar and others. In RS khatian No.

218, the name of Patit Paban Hazra, the predecessor of

the plaintiff /appellant, was also recorded as permissive

possessor. It was the contention of the

defendant/respondent that upon notice of such wrong

entry in the RS record of rights, Patit Paban Hazra

executed a 'Nadabi' deed on September 29, 1989 in

favour of the defendant/ respondent.

8. It was further case of the respondent/defendant that

Nakul Bar, while possessing properties appertained in RS

Khatian No. 218, died leaving behind four sons and two

daughters and a son and a daughter of his predeceased

daughter. The aforesaid successors of Nakul Bar

executed a sale deed on September 19, 1989 in favour of

the respondent/defendants in respect of 7¼ decimals of

land in plot No. 323. The defendants also purchased 7¼

decimals in the aforesaid plot No. 323 by a sale deed

dated September 19, 1989 executed by Sasibhuswan Bar

and two others. The respondent/defendant further

purchased 5¼ decimals in the suit plot by dint of

registered sale deed dated September 19, 1989 executed

by the legal heirs of Gobind Mal. The

respondent/defendants also purchased 7¼ decimals in

the suit plot by registered sale deed dated September 19,

1989 from Mahadev and Sahadev.

9. By such transactions, the defendant/respondent

acquired right, title and interest over 27 decimals of land

in the suit plot No. 323. Out of such lands, a deed of

exchange was executed by and between the defendant

and plaintiff No. 3, 4 and 5, through which, the plaintiffs

got 1-5/16 decimals in the suit plot. The defendant also

sold out 8-11/16 decimal therein by a registered deed of

sale dated September 28, 1989 in favour of the aforesaid

Patit Paban Hazra. Accordingly, the defendant remained

in ownership in respect of 17 decimals in the suit plot

No. 323 under Khatian No. 218 and possessed the same

by residing thereon and growing crops on a portion

thereof. The name of the defendant/respondent was duly

recorded under LR Khatian No. 1626 in respect of the

said 17 decimals in suit plot No. 323.

10. The defendant/respondent also submitted that

there was no existence of plot No. 323/3494. The

plaintiff/appellants, in collusion with the settlement

authorities, managed to get 5 decimals in the suit plot

recorded under plot No. 323/3494 which is erroneous. It

was also contended that no land acquisition proceeding

was ever started against the defendants nor they received

any notice of such proceeding. The plaintiffs cannot claim

any portion in the suit plot under the provisions of the

West Bengal Acquisition of Homestead Land for

Agricultural Labourers, Artisans and Fishermen Act,

1975. It was submitted that Patit Paban Hazra used to

own properties in Plot No.325 which ultimately, devolved

upon the plaintiffs and the same was duly recorded in

the RSROR.

11. On the basis of pleadings, put in by the respective

parties, the learned Trial Court framed as many as eight

issues for adjudication of the suit, that's to say:

1. Is the suit maintainable in its present form

and prayer?

2. Is the suit barred by limitation?

3. Is the suit bad for defect of parties?

4. Is the suit barred u/s 34 of the Specific Relief

Act?

5. Have the plaintiffs any right, title, interest in

and possession over the suit property?

6. Have the plaintiffs inherited the suit property?

7. Are the plaintiffs entitled to get a decree as

prayed for?

8. To what other relief or reliefs, if any, the

plaintiffs entitled to get.

12. Upon trial of the suit and on consideration of the

evidence adduced on behalf of the parties, the learned

Trial Court decided that the suit land was the property

acquired under the provisions of West Bengal Acquisition

of Homestead Land for Agricultural Labourers, Artisans

and Fishermen Act, 1975 and upon such acquisition, the

same was settled with the predecessor-in-interest of the

plaintiff. Accordingly, by a judgment dated May 13, 2003

the suit being Title Suit No. 157 of 1999 was decreed in

favour of the plaintiff/appellants.

13. The defendant/respondent carried an appeal

against the judgment and order passed by the Trial

Court. By a judgment and decree passed in such appeal

being Title Appeal No. 34 of 2003 i.e. the judgment and

decree impugned herein, learned First Appellate Court

allowed the appeal setting aside the judgment and decree

passed by the Trial Court. It was held in the impugned

judgment that the plaintiff/appellants failed to establish

title over the suit properties based on the acquisition

thereof under the provisions of the said Act of 1975 and

its settlement in favour of their predecessor.

14. It was submitted by learned advocate for the

appellant that the suit properties were vested under the

provisions of the said Act of 1975 and settled with their

predecessor as occupier thereof by the competent

authority. Such vesting of the land was never challenged.

The said land was accordingly recorded in the name of

the occupier in the RSROR. Such recording was not

challenged before the appropriate authority. The

defendant/respondent never moved for correction of the

record of rights.

15. It was also contended that the purchasers of the

defendant/respondents actively participated in the

vesting proceeding and as such, the respondents cannot

raise any objection against the declaration of title of the

appellant/plaintiff over the suit properties.

16. Learned advocate for the appellant also submitted

that the learned First Appellate Court failed to appreciate

that the land in question vesting in terms of Section 4 of

the said Act of 1975 and issuance of appropriate

document of conferment of title in terms of Rule 8 of

West Bengal Acquisition of Homestead Land for

Agricultural Labourers, Artisans and Fishermen Rules,

1976 was not mandatory. Non-issuance of a formal

document under Rule 8, would not vitiate the scheme of

the said Act of 1975. Such point was also not raised by

the respondent/defendant ever, in their written

statement or in the memorandum of appeal or even at

the time of hearing before learned first appellate court.

17. Learned advocate for the appellant further

contended that the defendant/respondent never

challenged the vesting or filed any suit or proceeding for

declaration of title and recovery of possession thereof.

18. Learned advocate for the appellant also contended

that learned First Appellate Court was not justified in

discarding the testimony of the documents produced on

behalf of the appellant/plaintiff in support of his title i.e.

Exhibit 4A, exhibit 4B and exhibit 4.

19. Learned advocate for the appellant also submitted

that the provisions of Section 4 of the said Act of 1975

presupposes possession of the occupier over the vested

land therefore, the provisions of Section 34 of the Specific

Relief Act, 1963 has no manner of application in the facts

and circumstances of the case.

20. Learned advocate for the appellants relied upon the

case reported in 2004 (1) Calcutta Law Journal 81

(Shri Narendra Nath Roy alias Narendra Kumar Roy

alias Narendra Narayan Roy Vs State of West Bengal)

in support of the proposition that the respondents/

defendants could have approached the tribunal, had they

any grievance against the acquisition and vesting of the

suit property under the provisions of the said Act of

1975.

21. On the other hand, learned advocate for the

respondent/defendant submitted that the suit as framed

was not maintainable in so far as the plaintiff did not

seek recovery of possession. For the aforesaid reason, the

suit was barred by the provisions of Section 34 of the

Specific Relief Act.

22. It was also contended by learned advocate for the

respondent that exhibit B produced on their behalf,

spoke of devolution of the suit property but it is silent as

to the factum of acquisition of such land under the

provisions of the said Act of 1975.

23. In consideration of the materials placed on before

this Court, the appeal was admitted for the adjudication

of the following points of law involved herein, that's to

say: -

(a) Whether the learned Court of appeal below

committed substantial error of law in reversing

the judgment and decree passed by the learned

Trial Judge by totally misreading the scope of

exhibit 4A and exhibit 4B?

(b) Whether the learned Court of appeal below

committed substantial error of law in not

deciding whether Rule 8 of the West Bengal

Acquisition of Homestead Land for Agricultural

Labourers, Artisans and Fishermen Rules, 1976

is mandatory or not?

24. As noted above, the plaintiff claimed to have

acquired right and title in the suit land through his

predecessor-in-interest Patit Paban Hazra who, in turn,

received the same on settlement under Section 4 of the

Act of 1975. The appellant banked upon exhibit 4A and

exhibit 4B to establish his right and title over the suit

land. The learned Trial Court decreed the suit of the

plaintiffs affirming their title over the suit property on the

basis of the documents produced on behalf of the

plaintiffs, more specifically exhibit 4A i.e. certified copy of

the order sheet in proceeding No.1 of 1982 under Section

4 of the Act of 1975 and exhibit 4B i.e. certified copy of

LR ROR. Besides, the appellants/plaintiffs also relied

upon the notice issued upon the respondents or their

predecessors in such proceeding (exhibit 4) and certified

copy of RS ROR. The learned Trial Court relied upon

such documents and consciously negated the prayer of

the respondents for expunging such documents holding

that such documents were duly issued by a public officer

and could not be discarded. On the basis of such

documents, the learned Trial Court went on to hold that

the predecessor-in-interest of the plaintiffs acquired the

suit land in terms of the provisions of Section 4 of the Act

of 1975 which ultimately devolved upon the

appellants/plaintiffs and decreed the suit in their favour.

25. In the impugned judgment, however, the learned

First Appellate Court, although, did not question the

admissibility of exhibit 4 and 4A but went on to hold that

the aforesaid document was devoid of a document of

conferment of title in terms of Rule 8 of the West Bengal

Acquisition of Homestead Land for Agricultural

Labourers, Artisans and Fishermen Rules, 1976 and as

such, no title to the suit lands passed on to the said Patit

Paban Hazra under the West Bengal Acquisition of

Homestead Land for Agricultural Labourers, Artisans and

Fishermen Act, 1975 which could devolve upon the

appellants. Consequently, the learned first appellate

court, by the impugned judgment and decree overturned

the judgment and decree passed by the learned Trial

Court.

26. So far as the admissibility of exhibit 4A and exhibit

4B is concerned, the two documents surely falls in the

category of 'public document' as defined under Section

74 of the Indian Evidence Act, 1872, a certified copy of

which could legally be issued under Section 76 and

proved in terms of Section 77 of the said Act. There

appears nothing wrong with the admissibility of exhibit

4A and exhibit 4B.

27. As regards the acquisition of the subject land, it was

held in the impugned judgment that since, a document of

conferment of title was not issued in favour of the

occupier, in terms of Rule 8 of Rules of 1976, by mere

operation of the provisions of Section 4 of the Act of 1975

title in such land cannot pass on to the occupier. The

learned First Appellate Court held exhibit 4A not to be a

valid document of title.

28. In order to adjudicate the points of law as framed

for determination of the instant appeal, it would be

apposite to refer to the provisions of Section 4 of Act of

1975, and Rule 8 of the Rules of 1976 which lays down

that,

Section 4 of Act of 1975

4. Where an occupier has been in possession of

any land on the 26th day of June, 1975 then--

(a) if the land in his possession does not

exceed .0334 hectare, such land, and

(b) if the land in his possession exceeds

.0334 hectare, so much of such land as

does not exceed .0334 hectare,

shall stand acquired by the State Government

and shall thereupon stand transferred to and

vest absolutely in favour of such occupier.

29. The scheme of Section 4 of the Act of 1975 suggests

that where the occupier is found in occupation of land on

the particular day of 26th day of June, 1975, the specific

area subject to a maximum of .0334 hectare, shall stand

acquired by the State Government. Not only that, upon

such acquisition by the State, the same shall stand

transferred to and absolutely vest in favour of the

occupier.

30. Rule 8 of the West Bengal Acquisition of Homestead

Land for Agricultural Labourers, Artisans and Fishermen

Rules, 1976 reads, thus"

8. Conferment of title of land.-The Collector shall

confirm the title of the Land which has vested in

an occupier under section 4, by a document in

favour of that occupier in the form appended

below :-

31. In order to decode the cumulative impact of the two

provisions, an unadorned reading of the provisions of

Section 4 of the Act of 1975 adequately suggests that the

moment an occupier as defined under Section 2 (f) of the

Act is found in possession of a land within the meaning

of Section 2 (e) of the said Act, on the particular date, the

specific area of such land shall stand acquired by the

State Government and at the same time such land shall

stand vested absolutely, into the occupier. Such

acquisition or vesting shall operate automatic by

operation of law. The provisions of Section 4, does not

require or provide for any specific act to be done on the

part of either the State or the occupier, to effectuate such

acquisition or vesting.

32. At the same time, the words used in Rule 8 of the

Rules of 1976 to the effect "The Collector shall confirm

the title of the Land which has vested in an occupier

under section 4......." contemplates confirmation of title

by the Collector by means of a document in this regard,

of a land which has already been vested in the occupier.

The aforesaid provision sufficiently establishes that the

title of the land has already vested into the occupier by

operation of Section 4 of the Act of 1975. If that be so,

the title of an occupier over a land vested in him under

the provisions of the Act of 1975 cannot be faulted for

non-issuance of a document confirming title of the

occupier thereof. The language used in Rule 8 is quite

explicit to indicate that a document of confirmation of

title by the Collector contemplated under such Rule is

not a sine qua non for conferment of title in a property

which has already been vested in the occupier under

Section 4 of the Act.

33. Furthermore, exhibit 4A goes to show that a

proceeding under Section 4 of the Act of 1975 was

initiated at the behest of the appellants/plaintiffs. The

respondents/defendants have made out a case that no

notice in the proceeding was served upon them. However,

from the purport of exhibit 4A, it is evident from order

dated January 03, 1983, in the proceeding under Section

4 of the Act of 1975 that notice of the proceeding was

duly served upon the respondents. Besides that, order

dated January 13, 1983 goes to establish that the

hearing in the proceeding was effected in presence of

both the parties and recording of 0.05 acres in the suit

plot in favour of the petitioner in the proceeding i.e. the

occupier Patit Paban Hazra in the record of rights, was

materialized subsequent to mutual consent of the parties

followed by a joint petition filed by both the parties.

34. In such view of the facts, besides the operation of

Section 4 of the Act of 1975, the respondents/defendants

are stopped from denying the title of the predecessor of

the appellants/plaintiffs and in turn, that of the

appellants/plaintiffs.

35. The deed of relinquishment/'Nadabi' (exhibit B) is

also of no assistance for the respondents. In terms of the

provisions of Section 12 of the Act of 1975, an occupier is

protected from being evicted or dispossessed from the

land vested in him under Section 4 of the Act,

notwithstanding any judgment, decree or order of any

Court for such eviction or dispossession. In fact, an

occupier of a land vested in him under Section 4 of the

Act of 1975, is debarred from transferring such land, in

accordance with the provisions of Section 10 of the said

Act, except by a simple mortgage in favour of scheduled

bank, cooperative land mortgage bank or a corporation

owned by Central or State Government and that too, for

the development of such land. Therefore, Exhibit B

cannot operate to vitiate the title of the predecessor of the

appellants/plaintiffs over the suit land which is vested in

him in terms of Section 4 of the Act. Besides that, in

terms of the provisions of Section 11 of the Act of 1975, a

person, who evicts an occupier, unlawfully from the land

vested in such occupier under Section 4 of the Act, is

liable to criminal liability as well.

36. The ratio laid down in the case of Shri Narendra

Nath Roy (Supra) has no manner of applicability in the

facts and circumstances of the instant appeal.

37. Therefore, in the light of discussions made

hereinbefore, I am of the view that the learned First

Appellate Court completely misunderstood the scope of

Section 4 of the Act of 1975 as well as Rule 8 of the Rules

of 1976 in discarding the impact of exhibit 4A and exhibit

4B and thereby committed substantial error in reversing

the judgment and decree passed by the learned Trial

Court in T. S. No. 157 of 1999. The points of law framed

vide order dated March 21, 2007 are decided accordingly.

38. Consequently, the impugned judgment and decree

dated August 28, 2006 passed by learned Civil Judge

(Senior Division), Tamluk in Title Appeal No. 34 of 2003

is set aside.

39. Accordingly, the instant appeal being S.A. 55 of

2018 is allowed without any order as to costs. The

judgment and decree of the Learned Trial Court shall

stand restored. Connected applications, if any, shall

stand disposed.

40. L. C. R. along with a copy of the judgment be sent to

the appropriate Court at an early date.

41. Urgent photostat certified copy of this order, if

applied for, be supplied to the parties on priority basis

upon compliance of all formalities.

[MD. SHABBAR RASHIDI, J.]