GURU PRASAD DUTTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present second appeal is directed against the judgment and decree, by which the learned first appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court and judgment was passed on 23.12.1988 by the Assistant District Judge, Addl. Court, Burdwan in T.A. 5/88.

(2.) In a nutshel, the facts and circumstances leading to the present second appeal are as hereunder :- The plaintiffs/appellants brought a suit alleging, inter alia, that the suit property originally belonged to Raj Ballav Dutta. Raj Ballav Dutta had also big debottar estate and he had three sons, namely, Hari Prosad Dutta, Radhika Prosad Dutta and Bishnuprasad Dutta. At the time of death of Raj Ballav, Bishnuprasad, the father of the plaintiff was minor and the other two brothers Radhika Prasad and Hari Prasad used to look after the Debottar Estate. According to the allegation they committed various acts of mismanagement in respect of debottar estate and incurred a heavy loan by mortgaging debottar estate. In this background, Bishnuprasad with a view to protecting the secular property from the clutches of the creditors, executed a deed of gift in respect of the suit property and in this way created a benami in respect of such property in the name of his wife. But it is also alleged that donee never accepted the said gift nor did she ever possess the gifted land as a donee. In fact it is the allegation of the plaintiffs that the said deed of gift was never acted upon. On the other hand, one of the plaintiffs started a partition suit, in which wife of Bishnu Prasad, Kashiswari was a party and the same ended in a compromise decree each co-sharers getting separate allotment of their own share. It is further alleged that State of West Bengal started a proceeding under the provisions of the West Bengal Land Reforms Act against the apparent owner Kashiswari and treating all the properties including the suit properties to be of Kashiswari alone, allowed her to possess only 6.18 acres of land considering her to be one unit and declared the excess land as vested to the State. On the basis of the said order, the local Tahasildar threatened the plaintiffs with dispossession. In that background,. the plaintiffs had to file the suit. Defendant, State of West Bengal contested the suit on a written statement contending, inter alia, that the present suit is barred under section 14X of West Bengal Land Reforms Act and denied the allegation that the deed of gift in favour of Kashiswari was mere a paper transaction and the same was never acted upon and that the said Kashiswari on the basis of the said deed only became a mere name lender. The learned Munsif in his judgment held that section 14X of the West Bengal Land Reforms Act created an expressed bar to the Civil Court to decide any dispute coming within Chapter II(B) of the West Bengal Land Reforms Act, which was to be decided by the R.O. But at the same time, he found that the Civil Court had the competence to examine the basis of acts upon which the authority assumed jurisdiction and found that the notice of section 14T was not served upon the raiyat Kashiswari and therefore, there was a violation of natural justice and thereafter he entered into the question and deciding that the order of vesting was wrong and decreed the suit. In appeal, the learned first appellate Court found that the plaintiff/respondents were well aware of the order of vesting and that in connection with the proceeding initiated by the R.O., such Court found that Gour Prasad Dutta one of the respondents before him appeared and prayed for time to contest the case before such authority. In that background, he came to a clear finding that it could not be said that the respondents were not served with a notice of the proceeding under section 14T by the R.O. The learned appellate Court below also pointed out the apparent contradiction in the plaintiffs case by observing that the trial Court held that P.W.1 (one of the respondents before the trial Court) was a adult male member and had no property of his own and in view of the section 14K of the West Bengal Land Reforms Act, he would be treated as a member of his mother's family. He has further pointed out that the specific case of the plaintiff/respondents was that the deed of gift was a benami and if the same be proved then all the respondents would have their separate shares in it. The learned appellate Court also pointed out that both in the C.S. and R.S. record of rights, the name of Kashiswari was recorded. In this way, the learned appellate Court ultimately came to a conclusion that the learned Court below improperly dealt with the matter and came to an erroneous conclusion. Accordingly, the appeal was allowed and the judgment and decree passed by the trial Court was set aside.

(3.) At the time of admission of the appeal, it transpires it was only noted by the Division Bench of this Court admitting the appeal that the present appeal would be heard. In this background, at the time of hearing of the appeal, on going through the judgments delivered by the Courts below and the memo of appeal and after hearing the learned Advocate for the appellant I have formulated the following question as the only question for consideration in the present appeal, it reads as follows :- Whether the first appellate Court reversed the judgment of the trial Court without any proper reason?