RAM NARAYAN AGARWALLA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The plaintiff's case is that one Hiralal Barik was recorded as a tenure-holder in rent free right in respect of 4.53 acres of land appertaining to Khatian No. 582 of mouza Sahapur. By the registered sale deed dated 8th June, 1963, he purchased a portion of that property, as noted in the Schedule Ka, from Hiralal's son. But in the R. S. Khatian the Kha Schedule land, which is a portion of the property described in the Schedule Ka to the plaint, has been assessed to rent at the rate of Rs. 94/-. This assessment of rent is illegal and without jurisdiction. The disputed property is a non-agricultural one held in Niskar right and hence it was not liable to be assessed to rent. The suit is for a permanent injunction on declaration that the entry, in the record-of-rights is erroneous and not binding on the plaintiff.

(2.) State of West Bengal contested the suit and stated that the assessment had been validly made.

(3.) The learned Munsif upheld the plaintiff's version and decreed the suit. State moved up to the appellate Court. The learned Additional District Judge stated that the original Khatian No. 938 contained non-agricultural land. Out of the property described in that khatian, Ext. 1, two khati-ans were carved out, namely, Nos. 1656 and 1655 under Section 26 of the West Bengal Estates Acquisition Act, vide the Khatians Exts. A (2) and A (3), The record-of-rights, Ext A (3), consisted of a danga plot, namely, plot No. 434 as Well. That was an agricultural land. He held that since the original property consisted of a danga land, that is, agricultural land, the case was not within the proviso to Section 42 of the West Bengal Estates Acquisition Act and hence the assessment of rent regarding the Niskar non-agricultural property had been validly made. Upon that finding the appeal was allowed and the suit dismissed. Hence this second appeal.