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Gopal Chandra Bairagi v/s Panchanan Mondal & Others


Company & Directors' Information:- J N GOPAL AND CO PRIVATE LIMITED [Active] CIN = U74899DL1981PTC012476

Company & Directors' Information:- R K CHANDRA PVT LTD [Strike Off] CIN = U36911WB1989PTC046753

Company & Directors' Information:- S N MONDAL & CO PVT LTD [Active] CIN = U15520WB1987PTC042717

Company & Directors' Information:- GOPAL CO PVT LTD [Strike Off] CIN = U00513MP1948PTC000460

Company & Directors' Information:- D N MONDAL & CO PVT LTD [Strike Off] CIN = U51909WB1961PTC025048

Company & Directors' Information:- H CHANDRA PRIVATE LIMITED [Strike Off] CIN = U65990MH1952PTC008894

Company & Directors' Information:- M W MONDAL & CO PVT LTD [Strike Off] CIN = U93020WB1937PTC008964

Company & Directors' Information:- S K MONDAL & CO PVT LTD [Strike Off] CIN = U51909WB1954PTC021581

Company & Directors' Information:- H C CHANDRA & CO. PVT LTD [Strike Off] CIN = U20231WB1957PTC023337

Company & Directors' Information:- CHANDRA AND COMPANY PRIVATE LIMITED [Dissolved] CIN = U74999KL1952PTC000280

Company & Directors' Information:- R. CHANDRA LIMITED [Not available for efiling] CIN = U99999MH1953PLC009175

    Second Appeal No. 83 of 2009 & C.A.N. No. 10752 of 2019

    Decided On, 05 December 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SUVRA GHOSH

    For the Appearing Parties: P.B. Sahoo, Uday Narayan Betal, Bhaskar Hutait, Sabyasachi Bhattacharjee, Manabendranath Bandyopadhyay, Advocates.



Judgment Text


1. The second appeal is directed against the judgment and decree dated 24.02.2006 passed by the learned Civil Judge, (Senior Division), Baruipur, South 24 Parganas in Title Appeal No. 30 of 2000, affirming the judgment and decree dated 17.02.2000 and 03.03.2000 respectively passed by the learned Civil Judge, (Junior Division), Baruipur in Title Suit No. 85 of 1999. By the said judgment, the First Appellate Court dismissed the appeal ex parte and affirmed the judgment and decree of the Trial Court.

2. The plaintiff/appellant filed a suit before the learned Trial Court praying for a decree for declaration and permanent injunction wherein he contended that the suit property originally belonged to one Nalini Roy, since deceased, and the plaintiff used to cultivate the land under the owner since 1964. The land was subsequently vested with the Government of West Bengal following which the plaintiff acquired title in respect of the property by virtue two separate pattas executed in his favour by the Government in 1972 and 1983 respectively and has been occupying the property by residing in a portion of the property and cultivating the remaining portion. The plaintiff alleged that defendant nos. 1 and 2 who had no right, title, interest or possession in respect of the property obtained forged and manufactured pattas in connivance with the B.L. and L.R.O. Department and tried to occupy the property forcibly on 05.02.1997. These defendants also declared that they would occupy the property forcibly and raise construction thereon. The plaintiff, therefore, prayed for a decree declaring his title in respect of the suit property and permanent injunction restraining defendant nos. 1 and 2 from disturbing his peaceful possession therein.

3. The defendant nos. 1 and 2 contested the suit by filing written statement wherein they denied the contention of the plaintiff and averred that 25 decimals of the suit dag was settled in favour of defendant no. 1 and 50 decimals in favour of defendant no. 2 by the Government of West Bengal by virtue of two separate pattas issued in 1983 and in the same year 34 decimals of the property was allotted in favour of the plaintiff. The defendants have been occupying their portion of the property as owners thereof. The defendants prayed for dismissal of the suit.

4. Upon the pleadings of both the parties, the Trial Court framed the following issues:-

(1) Is the suit maintainable in its present form and prayer?

(2) Is there any cause of action to file the suit?

(3) Is the suit maintainable in view of the provision of the West Bengal Land Reforms Act 1955?

(4) Does the plaintiff have any right, title, interest and possession in respect of the suit property?

(5) Is the plaintiff entitled to get the decree as prayed for?

(6) To what other relief or reliefs, if any, is the plaintiff entitled?

5. The plaintiff adduced evidence of three witnesses including himself and produced documents in support of his case. The defendants refrained from adducing any evidence. Upon considering the evidence on record as well as submission made by the parties, the learned Trial Court, by the impugned judgment, dismissed the suit with an observation that the suit was not maintainable before the Court in view of Sections 49(2) and 61 of the West Bengal Land Reforms Act, 1955.

6. Being aggrieved by and dissatisfied with the said judgment, the plaintiff preferred an appeal before the learned First Appellate Court. The First Appellate Court, after considering the material on record, dismissed the appeal ex parte without cost and affirmed the judgment and decree of the Trial Court. Hence, the present second appeal was preferred by the plaintiff/appellant.

7. In admitting the appeal, an Honourable Division Bench of this Court formulated substantial questions of law which are required to be considered in disposing of the appeal. The substantial questions of law are set out: -

"(1) Whether the learned Courts below failed to appreciate that the pattas settled in favour of the plaintiff/Appellant in the year 1972 and 1983 in conformity with the provisions of the West Bengal Land Reforms Act and the suit is maintainable in the event if the defendants/respondents No.1 and 2 disturb the peaceful possession of the plaintiff/appellant until the said pattas are annulled in due process of law?

(2) Whether the learned Courts below failed to consider that without giving any opportunity of hearing upon the plaintiff/appellant, the pattas cannot be distributed to the defendants in the self-same plots which was granted/settled long before by the concerned Department of the State of West Bengal in favour of the appellant?

(3) Whether the learned Courts below failed to appreciate the plaint case where there is no prayer for annulment of Patta under Section 49(1) of the W.B.L.R. Act, 1955, rather the suits for declaration of title and permanent injunction and Section 34 of the Specific Relief Act, is applicable?

(4) Whether the learned Courts below erred in holding that the Pattas which was issued in favour of the defendants/respondents in measuring about 79 decimals of land in Plot No. 2009 are invalid in the eye of law as because without cancellation in earlier one which was settled in favour of the plaintiff/appellant the said purported Pattas cannot be granted to the defendants without the process of law?

(5) Whether the learned Courts below failed to consider that the suit is maintainable as per Section 61(3) of the W.B.L.R. Act, 1955 although the plaintiff/appellant has valid right, title and interest over 79 decimals of land the pattas was issued in the year 1972 and also .30 decimals of land in plot no. 2009 which was in the year 1983?"

8. The appellant and respondent no. 1 are represented.

9. Learned advocate for the appellant submitted that in view of Section 34 of the Specific Relief Act 1963, there is no bar in granting a decree for declaration and injunction in favour of the appellant. In producing the finally published record of rights, the appellant submitted that he is the owner and occupier of the suit property by virtue of two separate pattas issued in his favour by the Government in 1972 and 1983 respectively. The pattas produced by the defendant/respondents allegedly issued in 1983 are manufactured and void, as there was no scope of issuance of such pattas in favour of the respondents after pattas were issued in favour of the appellant in respect of the same property. No oral evidence was adduced by the respondents despite which their documents were admitted in evidence by the Trial Court. The State was also not represented and did not challenge the validity of the pattas issued in favour of the plaintiff/appellant. The respondents did not discharge the onus upon them to prove issuance of the pattas in their favour.

10. Lastly, the Trial Court dismissed the suit only on the issue of maintainability without discussing the other issues and has thereby violated the provision of Order XX Rule 5 of the Code of Civil Procedure.

11. The first respondent who contested the appeal candidly submitted that no patta was granted in his favour and he has no title or possession in respect of any portion of the property.

12. It is enumerated in Order XX Rule 5 of the Code of Civil Procedure that "In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."

13. In the present case, the Trial Court dismissed the suit only on the issue of maintainability in view of Sections 49(2) and 61 of the West Bengal Land Reforms Act, 1955. But the First Appellate Court dealt with all the issues on merit and came to the conclusion that the plaintiff/appellant had right title, interest and possession in respect of 30 decimals of land in plot no. 2009, but not in respect of the remaining 79 decimals claimed by him. The First Appellate Court dismissed the appeal on the ground that even if a decree for permanent injunction was granted in favour of the appellant, the decree could not be enforced with regard to the 30 decimals of land as the said portion of the land was not specifically demarcated and identified by boundaries. Therefore, the plaintiff's grievance against the judgment of the Trial Court for not complying with the provision of Order XX Rule 5 of the Code of Civil Procedure was addressed by the First Appellate Court.

14. Section 34 of the Specific Relief Act, 1963, confers discretion upon the Court to declare title of a person in respect of a property to which he is entitled. Relying upon such provision, the plaintiff/appellant prayed for a declaration of his title in respect of the property and injunction restraining defendant/respondent nos. 1 and 2 from disturbing his peaceful possession therein. According to the appellant, he acquired title by virtue of two separate pattas issued in his favour by the Government in 1972 and 1983. The appellant alleged that in 1983 pattas were issued in favour of respondent nos. 1 and 2 in respect of some portions of land in the suit dag which included a portion of land previously allotted to him by virtue of the patta of 1972 and as such, the subsequent pattas issued with regard to a portion of his property in favour of the respondents was not in accordance with law and such pattas were fraudulently issued in connivance with the office of the B.L. and L.R.O. Admittedly, the appellant did not express his grievance before the Revenue Officer under Section 49(2) of the West Bengal Land Reforms Act, 1955. Section 49(2) of the Act 1955 exclusively empowers the Revenue Officer to deal with disputes regarding settlement of land and any subsequent transfer of the said land after holding proper enquiry the said provision allows the Revenue Officer to annul such settlement or both the settlement and transfer, as the case may be. No such exercise was undertaken by the appellant as appears from the record.

15. At this juncture, a decision of an Hon'ble Division Bench of this Court in Md. Abdus Sadeque Sarkar and another v/s State of West Bengal and others, (2011) 2 CalLJ 592 (Cal) may be relevant. The Hon'ble Division Bench, in dealing with disposal of an application for annulment of patta under Section 49(2) of the West Bengal Land Reforms Act, 1955 observed that such prayer for annulment of patta was to be disposed of by the Revenue Officer, the S.D.O being appointed as the Revenue Officer for the purpose of Section 49(2) of the Act of 1955.

16. Section 61(1) of the Act of 1955 states in no uncertain terms that "Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force or in any decree, judgment, decision or award of any court, tribunal or authority, no court shall have jurisdiction to determine any question relating to any land or connected with any matter which is required to be or which has been enquired into or decided by any Revenue Officer or prescribed authority or any officer or authority under the provisions of this Act."

17. In the present case, though the plaintiff/appellant filed a simplicitor suit for declaration and permanent injunction, the dispute between the parties primarily rests upon the pattas executed in their favour by the Government. Some portion of the property was recorded in favour of both the parties in the pattas issued in their favour and such dispute cannot be resolved unless enquiry with regard to the same is held by the Revenue Officer to adjudicate the legality, validity and genuineness of the patta issued in favour of the appellant as well as those issued subsequently in favour of respondent nos. 1 and 2. This is not a suit where a decree for declaration and permanent injunction in favour of the owner shall set the matter at rest. Though respondent no. 2 has not contested the appeal, it is evident from the pattas (Ext. A, B, C and D) as well as the entries in the patta register (Ext. E, E1, E2, E3 and E4) which were produced by the appellant's witness in evidence that other portions of the suit plot where settled in favour of respondents nos. 1 and 2 and others besides the appellant. As the crux of the case is the issuance of these pattas, determination of such issue falls within the exclusive domain of the Revenue Officer and the appellant can under no circumstances bypass the rigours of Section 49(2) of the Act of 1955 in the garb of a prayer for declaration and permanent injunction. The land in question and the pattas issued therefor falls within the purview of the Act of 1955 and the appellant cannot avail of the exception laid down in Section 61(3) of the Act.

18. In view of the provision of Section 49(2) as well as Section 61 of the Act 1955, it was rightly held by the learned Trial Court that the Court had no jurisdiction to try the suit and as such, the suit was not maintainable before the said Court. Also, as the suit was held to be not maintainable on the point of jurisdiction, the learned Trial Court committed no error in disposing of the suit on the maintainability point and not proceeding to deal with the other issues framed in the suit. Such act of the learned Trial Court finds support in Order XX Rule 5 of the Code of Civil Procedure which says that every issue should be decided by the Court "Unless the finding upon any one or more of the issues is sufficient for the decision of the suit."

19. In answering the substantial questions of law formulated by the Hon'ble Division Bench of this Court, it is held that the suit is not maintainable before the Civil Court and the plaintiff/appellant ought to have taken steps before the appropriate forum for annulment of the pattas whose legality, validity and genuineness have been challenged by him. Whether such pattas could have been issued in favour of the respondents in respect of the same plots which were settled in favour of the plaintiff/appellant earlier is to be decided by the Revenue Officer in accordance with law. There being a special provision for challenging such patta, a simplic

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itor suit for declaration and permanent injunction as well as prayer for relief under Section 34 of the Specific Relief Act is not tenable in the eye of law. 20. Upon consideration of the material on record as well as the law on the subject, I am left with no other alternative but to hold that the suit or for that matter, the appeal is not maintainable before the Civil Court and is liable to be dismissed. There is no illegality or irregularity in the decision of the first appellate court that calls for interference by this court. 21. It is pertinent to mention here that the appellant produced certain documents like finally published L.R. record of rights and dakhila for consideration by this court, but this court has no scope to enter into the merit of the suit or the appeal or deal with such documents in view of Section 49(2) and 61 of the Act 1955. 22. In the result, that Second Appeal fails. 23. However, the appellant shall be at liberty to take appropriate steps in this regard before the competent authority in accordance with law. 24. The judgment and order of dismissal passed by the First Appellate Court, affirming the judgment of the trial court, is affirmed though this Court does not concur with the views of the learned First Appellate Court in the body of the judgment impugned. 25. S.A. 83 of 2009 with C.A.N. 10752 of 2019 is disposed of accordingly. 26. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.
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