SUDARSHAN GHOSH Vs. JANAKINATH PANDIT

JUDGEMENT

(1.) This is an appeal at the instance of the tenant defendant and is directed against the judgment and decree passed in Title Appeal No 508 of 1962 by the Third Court of the Subordinate Judge, at Midnapore on May 14. 1964 arising out of Title Suit No. 139 of 1961.

(2.) The facts leading to this appeal are in short that the plaintiff instituted the suit being Title Suit No. 139 of 1961 in the Court of the Munsif at Garhbeta for a declaration that the decisions of Bhagchas cases Nos. 128-K and 129-K of 1958 of Keshabpore Bhagchas Office as well as of Bhagchas Appeals Nos. 41 and 42 of 1959 were illegal void and without jurisdiction and not binding upon the plaintiff and also for a declaration that the decision of the Bhaachas case No. 14-K of 1960 of the said Bhagchas Office was also illegal, void and without jurisdiction. In the said suit the plaintiff also prayed for a permanent injunction restraining the defendant from proceeding with the execution case being Execution case No. 60-N of 1961-62 pending in the Court of Sub-Divisional Officer, Midnapore and from interfering with the possession of the plaintiff in respect of the suit lands as well as for temporary injunction during the pendency of the suit stating inter alia that 3.60 acres of land comprised in C. S. plot No. 75 under Khatian No. 60 of Mouza Emua belonged to one Chandi Das Chakraborty who was then a minor. Chandi Das's father Bidhubhusan as his guardian settled 1.80 acres of land out of the said land with the father of plaintiff at a rental of half share of the produce in 1348 B. S. and one Suresh Chakraborty, it was alleged, used to realise rents of the suit land on behalf of Chandi Das. The plaintiff's father possessed the suit land on payment of rent to owner. Subsequently the suit land was sold by Chandi Das to one Bagala Bhanja and plaintiff's father paid rent to him and possessed the said land as before. After his death sometime in 1351 B. S. or 1352 B. S. the plaintiff began to possess the suit land paying rent to Bagala Bhanja as before. The defendant purchased the said land from Bagala Bhanja by a kobala dated 5th of August, 1957. In the R. S. record of rights the plaintiff was recorded as a tenant under Bagala in respect of the said suit land but during attestation Bagala on taking advantage of his absence managed to get the said land recorded in the possession of the plaintiff as a Bhagchasi to the extent of 8 annas share since 1350 B. S. and one Iswar Barik was recorded as bargadar in respect of 8 annas of the suit land. Against the said wrong entry the plaintiff preferred an objection under Section 44 (2a) of the West Bengal Estates Acquisition Act and got his name recorded as a tenant in respect of the said land. The defendant after purchasing the said land falsely started some Bhagchas cases. The plaintiff filed objection in the said Bhagchas cases contending that he was a tenant and not a Bhagchasi but owing to his default in appearing on the date of hearing the cases were decided ex parte against him and awards for delivering of Bhagchas paddy as well as for termination of his cultivation were made by the Bhagchas Officer. Against the said order Bhagchas Appeals Nos. 41 and 42 of 1959 were preferred. The appellate officer, however, did not uphold the contention of the plaintiff and held that the plaintiff was a Bargadar in respect of the suit land and remanded the case for eviction for re-trial. The defendant also filed another case being B. C. Case No. 14-K of 1960 and on suppressing notices obtained an ex parte award in his favour. The said award was put into execution in B. C. Ex. Case No. 5 of 1961-62. Hence, the said suit was filed claiming the reliefs stated before.

(3.) The defendant filed a written statement denying that the plaintiff was a tenant in respect of the suit land and asserting that he had been possessing the said land as a Bhagchasi all along and the alleged rent receipts had been manufactured. It was also submitted that after the decision by the Bhagchas Officer that he was a Bhagchasi in respect of the suit land the plaintiff could not agitate the question that he was a tenant in respect of the suit land and not a Bargadar. The decision of the Bhagchas Officer as affirmed by the Appellate Officer was binding upon the plaintiff and the suit was, as such, liable to be dismissed.