JATINDRA NATH MALIK Vs. SUSHILENDRA NATH PALIT

JUDGEMENT

(1.) JEJUR, a village well-known in the District of Hooghly for producing big people, is the seat bed of this litigation and over about 3 Bighas of land only, in Which the defendant is the appellant; in this second appeal. It arises out of a suit by the respondent for a declaration that the appellant is a mere Bargadar in respect of the disputed property and not a tenant, either at cash or produce rent. Relief is also claimed that the entry thereof in the record of rights is wrong and the same is not binding on the plaintiff respondent; the plaintiff's case in short was that the defendant appellant took bhag settlement from the plaintiff and delivered bhag produce up to the year 1342 B. S. Though the defendant is a bargadar, the C. S. record, recorded him as a korma tenant. The entry therein that 'the property is liable to assessment of rent' was wrong. Against such alleged wrong recording, the plaintiff filed an objection under the provisions of section 44 (1) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Act ). "the Assistant Settlement Officer inter alia corrected the records with respect to the entry "liable to assessment of rent" and in its place, the entry "half share produce" was recorded. The plaintiff's appeal to the Tribunal under the provisions of section 44 (3) of the Act, met with dismissal on the ground that the appeal was barred by time.

(2.) THE defence in short was that the defendant appellant was a tenant and not a Bargadar; that he had been all along in possession as such, and the entries in the record of rights are correct. The learned Munsif on consideration of the evidence, both oral and documentary, dismissed the suit. It was found inter alia, that the plaintiff, though his title is admitted, failed to prove the bhag settlement. It was observed that, there was no document creating the tenancy of the defendant and that the evidence as to the same was not satisfactory. As the plaintiff respondent could not rebut the presumption of the correctness of the entries in the record of rights and as he could not prove the barga settlement in favour of the defendant appellant, the suit failed before him. The plaintiff having appealed, the Court of appeal below allowed the same, principally on three grounds. The main ground was that the defendant could not prove any foundation for the correctness of the entry as a tenant in the record of rights, relying on two decisions of this Court, namely, (1) Rai Kiran Chandra Bahadur v. Srinath Chakrabarty, 31 C. W. N. 135: A (1927) Cal. 210 and (2) Debendra Kumar Dutta Bhowmick v. Pramada Kanta Lahiry, 37 C. W. N. 810=a (1933) Cal. 879. Therefore, the Appellate Court held that the entry was erroneous.

(3.) CONSEQUENTLY the defendant was found to be the bargadar. The second, ground was that the adverse inference drawn by the learned Munsif against the plaintiff for non-production of the bhag receipts was held to be wrong. According to the Court of Appeal below, the specific and requisite provision of the west Bengal Land Reforms Act, 1955 which was held to be mandatory by the learned Munsif, is erroneous; because the fact that the said provisions did not come into force, had been over-looked by the learned Munsif. Lastly, on the statement appearing in the judgment of the Assistant Settlement officer, Ext. 4 where it was recorded that the defendant appellant paid half share of the produce in respect of the disputed property, the suit should be decreed. The learned Additional district Judge, therefore, allowed the appeal and set aside the judgment and decree of the learned Munsif against which the present second appeal has been preferred by the defendant. "