ATUL CHANDRA GHOSH Vs. STATE

JUDGEMENT

(1.) THE petitioner contends that the authorities below did not take into consideration the recitals in the registered sale-deed executed on 27. 6. 72 wherein it was given out inter alia that for the purpose of purchasing more profitable lands elsewhere the vendor was selling the disputed land to the petitioner. It is further contended that in the document itself there was no recital to the effect that the lands were being sold out in distress or for the maintenance of the vendor's family and on the other hand it was given out in the deed that for the purpose of purchasing a profitable land elsewhere, the vendor was selling out the land for valuable consideration to the petitioner.

(2.) THERE is clear provision in the statute in sub-section (5) of section 4 of the West Bengal Restoration of Alienated land Act, 1973 that notwithstanding anything contained in the indian Evidence Act, 1872 any evidence adduced by a transferor varying, adding to or subtracting from the terms of the sale deed to prove the necessity or purpose for which the transfer was made or the amount of consideration actually paid by the transferee to the transferor, shall be admitted info evidence. A proviso was added to the said sub-section by the amending act of 1980 viz. West Bengal Act XVI of 1980 that if an application stood rejected by the Special Officer only in consideration of the written recital about the purpose of transfer recorded in the sale deed overlooking the evidence adduced by the transferor, the transferor may within a period of one year from coming into force of the amending act, apply afresh and thereupon the Special Officer shall rehear the matter and consider such evidence as may be adduced by the transferor and the transferee and would pass a fresh order on the substantive application for restoration of the land. The intention of the statute is thus very clear that the recital in the deed should not be taken as sacrosanct and there would be scope for the parties to adduce evidence to the contrary from what has been given out by way of a recital in the deed since a seller is often perforce compelled by circumstances to be dictated by the terms of the purchaser while making out the deed itself. There are also similar provisions in the other statutes on relief from indebtedness where there is like intention to give reliefs to the distressed, e. g. the Bengal Money Lender's act and the like.

(3.) I have perused the evidence myself. The seller Adhir Chandra Ghose (respondent no. 5 herein) adduced evidence on his behalf which was supported by the evidence of one Naba Krishna ghose who was a common relation to both the parties. The petitioner also adduced evidence himself before the Special Officer and regard being had to the evidence of all the three witnesses, i do not think that either the Special Officer or the Appellate authority on appreciation of the said evidence and in sifting the same, has committed any such error patent on the record which would warrant any interference by the Writ Court in its constitutional writ jurisdiction. The trial authority as also the appellate authority have both come to a finding on evidence that the lands were sold by the private respondent no. 5 to the petitioner who was his own brother along with a verbal agreement to return the lands and it was a sale in "distress". The transferee also possessed lands less than two hectares which entitles him to the relief under the statute.