BIRENDRA NATH ROY Vs. BISWANATH MONDAL

JUDGEMENT

(1.) This revisional application is at the instance of the decree holder and it directed against orders 18 and 19 dated January 3, 1981 in J. Misc. Case no. 11 of 1980 in the Court of the learned Munsif, Garbeta. It is alleged by the petitioner that the petitioner is the owner of .51 acres of land in Plot no. 433, Mouza Upar Kuain, P. S. Keshpur and he along with his brother Amarendra Nath Ray, since deceased, was the owner of 31 acres of land in Plot no. 168, Mouza Tal Kuain, P. S. Keshpur and they were in khas possession since 1958. In 1969 the petitioner and his brother were dispossessed from the said land by the opposite parties 1 to 5 who claimed themselves as bargadars.

(2.) The petitioner and his brother instituted Title Suit no. 275 of 1970 in the Court of the learned Munsif at Garbeta against opposite parties 1 to 5 for declaration of title to the said land, for declaration that the opposite parties 1 to 5 had no barga rights therein, for recovery of possession and permanent injunction. The said suit was decreed on July 14, 1975 when the plaintiffs and the defendants of the said suit put in two solenamas whereby the opposite parties 1 to 5 acknowledged in writing the claims and rights of the plaintiffs. Opposite parties 1 to 5 categorically admitted that their deceased father and husband Abhoy Mondal, who had been a bargadar in respect of the suit land died on December 22, 1958 and after the death of Abhoy Mondal the plaintiffs took khas possession of the suit land and started cultivation therein by their own plough and men and the opposite parties 1 to 5 were never bargadars. The petitioner put the said decree into execution in Title Execution Case no. 4 of 1976 and got possession of the suit land through court on April 21,1976. The petitioner was in possession of the property since the decree in Title Suit no. 275 of 1970. The opposite parties 1 to 5 were trying to disturb the possession of the petitioner. The petitioner on August 16, 1979 started Title Execution Case no. 5 of 1979 praying for orders directing the opposite parties to be detained in civil prison, for attachment and sale of properties of the opposite parties on the allegation that the opposite parties 1 to 5 had willfully violated the order of permanent injunction. The Junior Land Reforms Officer, Keshpur on the recommendation of the Land Reforms Advisory Committee and the Panchayet Samity of Keshpur decided that the opposite parties 1 to 5 were bargadars of the disputed land. The petitioner moved this Court by an application under Article 226 of the Constitution and on September 18, 1979 this Court was pleased to issue a Rule being Civil Rule No. 10530(W) of 1979 and grant an interim order in terms of the prayers therein. The said Civil Rule is still pending. On March 3, 1980 opposite parties 1 to 5 filed a petition of objection in Title Execution Case no. 5 of 1979 contending that the decree in Title Suit no. 275 of 1970 was fraudulent and void and that they were bargadars of the suit land and were in possession all along as such. On January 3, 1981 the opposite parties filed two applications, one for the stay of the execution proceedings and the other for reference under section 21 (3) of the West Bengal Land Reforms Act (hereinafter referred to as the Act). The learned Munsif without giving an opportunity to the petitioner to put any written objection held that as there was no previous order of the proper authority as to whether the opposite parties were bargadars or not, the matter should be referred to the appropriate authority for determination of the question raised under section 21 (3) of the Act. Being aggrieved, the petitioner has obtained the present Rule.

(3.) Mr. Sengupta, learned Advocate for the petitioner, has raised several contentions. It has been argued that as Title Suit no. 275 of 1970 was decreed on compromise, no question as to whether the defendants of that suit were bargadars or not was to be decided. The petitioner got possession of the property in execution of the decree and the present execution case has been filed on the ground that there was violation of the decree for permanent injunction. The only question before the learned Munsif was whether there was violation of the decree for permanent injunction. Mr. Sengupta has argued that the opposite parties could raise the contentions in Title Execution Case no. 4 of 1976 when the petitioner sought for possession of the suit property. The opposite parties are not now entitled to raise any contention that they are bargadars. In such circumstances, the learned Munsif was wrong in holding that in the instant execution case the question arose as to whether the opposite parties were or were not bargadars. The learned Munsif thus acted illegally and with material irregularity in referring the matter under section 21(3) of the Act. No question arises in the present execution case to attract the provisions of section 21(3) of the Act.