SARBESWAR PRADHAN Vs. BIJAY KRISHNA PRADHAN

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree dtd. 21/8/1991 passed by the Additional District Judge, 2nd court, Contai in Title Appeal No. 63 of 1991. By the impugned judgment, the court below has set aside the judgment and decree dtd. 10/4/1991 passed by the 2nd Munsif, Contai in Title Suit no. 223 of 1987.

(2.) The appellant herein as plaintiff filed aforesaid suit for permanent injunction against the opposite party/defendants/villagers. According to plaint case, the plaintiff/appellant purchased land in the year 1965 being Dag no. 582 and 583 under Khatian no. 242 at Mouza Dera. Plaintiff's further case is Plot no. 584 having an area of about 4 decimal is in the nature of 'Dhosa' land and being a vested land it is under the disposal of the Government. The plaintiff/appellant purchased the said two plots being no. 582 and 583 from the original owner, Rabindra Nath Giri, which are adjacent to aforesaid suit plot no. 584. His vendor was possessing the said Government land being plot no. 584 and as such said plot has been amalgamated with his purchased plot and his vendor has handed over possession of the said suit plot also to him at the time of sell of plot no. 582 and 583. However, in the Record of Rights the suit land being Dag no. 584 is recorded as 'ground to be used by public for dumping pot'. The plaintiff's further case is that for his unlawful occupation of said suit plot, the State of West Bengal claimed Rs.920.80 towards indemnification for the period of 1372 B.S. to 1393 B.S. in connection with LT case no. 19 of 1394 and he paid said amount to Government. He further contended that he has been possessing the land with the consent of the villagers. However, the cause of action arose when the defendants/villagers threatened for dispossession on 29/11/1987 claiming that the suit plot is being used by the villagers as dumping of earthen pots. The appellant/plaintiff then filed aforesaid suit for permanent injunction for restraining the villagers/defendants to trespass or utilize the suit land being plot no. 584.

(3.) Mr. Gayen on behalf of the appellant argued that the suit plot no. 584 has been amalgamated with his purchased plot no. 582 and 583 and cannot be demarcated properly. He further argued that court below erroneously considered suit plot as 'Khas Mohal Land' under West Bengal Estate Acquisition Act, 1953. Referring Sec. 175 of the West Bengal Land Management Manual, 1977, Mr. Gayen contended that appellant is possessing Government land for more than 12 years and as such Government has to follow due process of eviction or give compensation for dispossession from land. Mr. Gayen strenuously argued that the court below failed to consider essentials of a valid custom and that the defendants claimed customary right over the suit property basing on a custom which has been abolished prior to 1960 due to modification of usage of Aluminium Pots in place of earthen Pots and as the custom lost it's essential it has become an invalid custom upon which respondents cannot claim customary right. On the contrary, as soon as Government accepted the rent from unauthorised occupant for unauthorised occupation, a relation of landlord and tenant got established.