HARI PATRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS second appeal was born out of a decision of Sri A. K. Goswami, learned Assistant District Judge, Contai, Midnapore dated 11th September, 1989 passed in Title Appeal No. 51 of 1989 reversing the judgement and decree dated September, 29, 1988 passed by Sri S.A. Qayyum, Munsif, 2nd Court, Contai in Title Suit No. 4 of 1983. In background of this appeal the facts in a nutshell is as follows : The land as described in schedule 'Ka ' and 'Kha ' to the plaint originally belonged to one Rudranarayan Patra and Ganganarayan Patra, the predecessors of the plaintiff and the defendants No. 2 to 5. The said Rudranarayan Patra and Ganganarayan Patra got the suit property from Manmatha Deb and others by Amalnama. The present plaintiff is the heir of Rudranarayan Patra, who got the 'ka ' schedule land by way of mutual partition. After the said Amalnama, the plaintiff 's grand father Rudranarayan Patra and Ganganarayan Patra took possession in respect of the 'kha ' schedule land. The suit land as described in the 'ka ' schedule of the plaint is part and parcel of the 'kha ' schedule land. After the death of Rudranarayan Patra the plaintiff 's father and thereafter plaintiff himself had been occupying the suit land on payment of rent. Previously the predecessors of the plaintiff used to pay rent to the owner of the land and after passing of the West Bengal Estate Acquisition Act they had been paying rent to the State. By the said Amalnama, the plaintiff 's predecessors got 25 decimals of land. But in the settlement of 1956 only 11 decimals of land was recorded in favour of the plaintiff and remaining 14 decimals of land vested into the State.

(2.) THAT record was not correctly prepared. J.L.R.O., and employee of the defendant No. 1, State of West Bengal were claiming the suit land as vested land and on 18th Poush, 1839 B.S. they threatened to dispossess the plaintiff from the suit land. Hence the suit. Defendant No. 1, State of West Bengal, contested the suit by filing written statement, inter alia, denying all the allegations made in the plaint. It was also stated by the defendant No. 1 that the instant suit was not maintainable in law and was barred by limitation and the plaintiff has no cause of action to file the instant suit. Defendant No. 1 denied right, title and interest of the plaintiff over the suit land. It was also denied that the plaintiff 's father acquired share over the suit land by way of mutual partition amongst the co-sharers. Defendant No. 4 filed written objection but did not contest. The predecessors of the plaintiff were not tenants of the original landlord. The positive defence case was that the suit land originally belonged to Dulal Chandra Deb & Ors., who were intermediaries and they have not retained the suit land. Hence it was vested into the State. Therefore, the plaintiff or their predecessors have no right, title and interest of the possession of the suit land.

(3.) BEING aggrieved by and dissatisfied with that judgment dated 11.9.1989 passed by the learned Assistant District Judge, 2nd Court, Contai, the plaintiff/appellant has preferred this appeal on the ground that the learned Assistant District Judge ought to have held that the predecessors of the plaintiff acquired possession of the suit land by way of Amalnama and excepting the Amalnama there is no other source of acquisition of right, title and interest over the suit land which was recorded in the name of plaintiff 's predecessors in the Record-of-Rights of 1956. Further it was contended that Amalnama clearly shows that the predecessors of the plaintiff took settlement of 25 decimals of land, the note of vesting in respect of the suit land of area of 14 decimals is erroneous and there is no statement that the name of the plaintiff 's predecessors were erroneously recorded. The learned Assistant District Judge ought to have held that Amalnama and the Dakhila created tenancy under the zamindar at the relevant point of time. The learned District Judge erred in law by holding that plot No. 831 has been shown vested in an intermediary khatian No. 4/1 and the said plot was not part and parcel of the Amalnama though the plaintiff described the same in 'ka ' schedule of the plaint.