MOJAHAR SHEIKH Vs. STATE

JUDGEMENT

(1.) THE predecessor in- interest of the petitioners, one Khudi Sheikh was admittedly; the bargadar against whom a proceeding under Section 18 (1) (a) and 18 (2) of the Land Reforms Act was tiled by the predecessor- in- title of private respondents viz. Siddique Hoasain, Farooque hossain, Raosan Ejdani and Abul,kalam azad, claiming owners' share of bhag produce for the years 1386 and 1337 B. 3. amounting to Rs. 12658|156 in respect of ka Schedule properties. They also prayed that the names of the petitioners nos. 1 to 4 be deleted from the category of bargadars in respect of the lands under schedule and the deceased Khudi Sheikh be treated as bargadar in respect thereof. The case of the private respondents before the Trial authority, i. e. the Bhagchas Officer under Sub-section (1) of Section 18 of the West Bengal Land Reforms Act had been that khudi Sheikh who had been a bargadar under them, assigned his merest in. favour of his four sons who claimed to have partitioned the lands in. between themselves though such bargadar' s interest was neither assignable nor partible. That apart the four sons of Khudi sheikh got their names collusively and surreptitiously recorded as bargadars exparte without notice to the private respondents in Operation barga, though each brother was claiming a different portion of the original land cultivated by their father Khudi Sheikh. Their case further was that they provided manure and seeds and hence they were entitled as owners to 50% of the produce in their share. The case was registered as Case No. 5 of 1980-81. The case was contested by the said Khudi Sheikh as also the petitioners nos. 1 to 4. After recording the deposition Of some of the witnesses, on 30. 7. 81 the trial authority held inter alia that the land was cultivated by Khodabaksh Sheikh alia Khudi Sheikh till his death in April, 1981. His sons (petitioners nos. 1 to 4) had been helping their father to cultivate the suit land. Their names were recorded as bargadars on misrepresentation so as to avoid future litigation apprehending trouble after the death of their father. The petitioner no. 4 was a minor at the time of recording his name as bargadar. He ordered a fresh recording cancelling the previous recording. Regarding delivery of produce, he held that the respondents were entitled to owners share of the produce for 1386 and 1387 b. S. But he directed the assessment to be made on report of concerned B. D. O. He also called for the local market price of the crops and asked the Block Tahsildar for assessment of production as well as market price of the crops. On 17. 9. 81 the said report of Block Tahsildar was submitted. A. D. M. (L. R.) intervened into the matter. At this stage, as per memo dated 20. 8. 81 he sent the file to j. L. R. 0. Murshidabad L. R. Circle. On 19. 10. 81 the owners i. e. the private respondents informed the Officer concerned trying the matter, to whom the case stood transferred, that Khudi Sheikh died in April 1981 and beside his four sons, who were already on record, some more heirs and legal representatives were to be added as parties defendants to whom notices are to be served. On 7. 11. 81 after due notices were served and the petitioners were duly represented, the matter was adjourned to 16. 11. 81 for judgment and order.

(2.) IT is indeed true that none of the heirs and legal Representatives of Khudi sheikh, the erstwhile bargadar,. came with any application within the meaning of Section 15a of the Land Reforms act for determination of any one of them as bargadar in the place and stead of the deceased Khudi Sheikh. However even bereft of such an application, when an application for substitution was filed before the trial authority with a prayer for addition of other heirs and legal representatives as parties defendant to the said proceeding, even if some contrary pleadings were taken up by some of the sons of deceased Khudi Sheikh that they were bargadars bereft of their status as sons of Khudi Sheikh, it was the duty of the Officer concerned to intervene in the matter and apprise all the heirs and legal representatives of the deceased bargadar about their legal rights to choose one of them as the successor to khudi Sheikh as a bargadar in respect of the suit land. It should never be for gotten that this case has some peculiar features of its own, where the owners themselves admitted Khudi Sheikh as bargadar and Khudi Sheikh did not disclaim his status as such, though some of his sons, being impleaded in the proceeding, might have taken a stand contrary to that of the father. That apart, the Officer concerned has also the power, independent of an application, to choose and select one of the heirs and legal representatives of Khudi Sheikh as the legal representative of the deceased bargadar to step into his shoes as successor to the bargadar. The attitude taken by the Officer concerned that in the absence of any application, the interests of bargadar would go by default, though the heirs as such would be liable to pay the alleged liability of the deceased khudi Sheikh seems to be opposed to the spirit of law in a social welfare state like ours. Law is well-settled that if an heir does not get the property of the person whom he inherits, he cannot be called upon to pay the' debts and obligations of the deceased. The parties not being Hindus, the theory of moral obligation of every Hindu to pay off the debt of the deceased father also is not applicable.

(3.) THE trial authority by judgment and order dated 16. 11. 81 hold all the heirs and legal representative liable for owner's share of produce for 1386 and 1387 B. S. assessed at Rs. 9486 71 in four equal annual instalments, the first of which shall be paid on or before 1st January 1982. He also held that the petitioners nos. 1 to 4 (respondents O. Ps. nos. 2 to 5 in the said proceeding) be not determined bargadars under Section 18 (2 ). of the West Bengal Land Reforms act. He however granted the liberty to the heirs of the owners of the land whose land the deceased bargadar Khudi Sheikh cultivated to file application before the authority under Section 18" (1) of the West Bengal Land Reforms Act for nominating one of the heirs of the deceased bargadar under Rule 2a (2) of the west Bengal Land Reforms Rules 1956. He however acted illegally and with material irregularity and failed to exercise a jurisdiction vested in him by law in not deciding for himself with due notice to all the heirs and legal representatives of Khudi Sheikh, who were all before him, to determine who amongst them should be chosen as the successor to the deceased bargadar Khudi Sheikh under Section 15a (2) of the Land Re-forms Act 1956. However this judgment was affirmed on appeal by the appellate authority i. e. Deputy Magistrate and deputy Collector, Lalbagh, Murshidabad by his judgment and order dated 28. 6. 84 with a modification of the amount payable by the petitioners as heirs and legal representatives of Khudi Sheikh, deceased. The appellate officer held that unless plough and cattle were supplied along with seed and manure, the owners were not entitled to 50% of the produce and he restricted the claim of the owners to 25% of the produce in respect of the crops for 1386 and 1387 B. S. which came to a total amount of Rs. 5111 26.