CHATURBHUJ MISRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application on under Section 115 of the Code of Civil Procedure and it is directed against the Judgment and order dated May 17, 1974 passed by the Subordinate Judge, Third Court, Mindnapore in Title Appeal No. 208 of 1973 setting aside the Judgment and decree dated the March 24, 1973 passed by the Second Court of Munsif at Contai in Title Suit No. 376 of 1969 holding that the suit abated under section 57 (b) of the West Bengal Estates Acquisition Act.

(2.) The petitioner Sudhabodh Misra instituted a suit being Title Suit No. 376 of 1969 in the Second Court of Munsif at Contai stating inter alia that lands measuring 6. 67 acres described in schedule "A" to the plaint had been possessed by him exclusive on the basis of an amicable partition with the defendant Nos. 2 since 1358 B.S. that the said property along with other properties were ancestral properties and they were governed by the Mitakshara School of Hindu Law in as much as their predecessors, who originally were residents of Orissa migrated to Midnapore where they are now residing. On 24th of Magh 1362 B.S., corresponding to 7th of February, 1956 a formal partition deed was executed and registered by them specifically recording the allotments in the shares of each of the parties. The petitioner as plaintiff prayed for a declaration of his exclusive title to schedule "A" property and for a declaration that the same could not vest in the state. The plaintiff also prayed for a permanent injunction restraining the state of West Bengal from interfering with the possession of the plaintiff in respect of the said lands. The defendant No. 1, the State of West Bengal, filed a written statement contending interalia that the plaintiff was not governed by the Mitakshara School of Hindu Law and there was no partition and the land in possession of the plaintiff being above the ceiling had not been retained by the plaintiff and as such the same had vested in the State. On March 24, 1973 the Munsif Second Court, Contai, decreed the said suit holding inter alia that the plaintiff was governed by the 'Mitakshara school of Hindu Law' and that this question was finally and conclusively decided in an earlier suit to which the state of West Bengal, the defendant No. 1, was a party. This will be evident from the exhibits 4 and 4(a) ??the Judgments of the Trial Court as well as of the appellate court. It was further held that in the said suit it was also decided that there had been a partition of the ancestral properties between the plaintiff and the defendant Nos. 2 to 4 in 1360 B.S. and the State of West Bengal being a party to that suit was not competent to challenge the deed of partition as a void of collusive document. The learned Munsif further held that the total lands in possession of the plaintiff being less than the ceiling no question of retention could arise as the plaintiff was not a 'Big Raiyat' and as such the submission of 'B' Form was not at all necessary.

(3.) Against this Judgment and decree the defendant No. 1, the State of West Bengal, preferred an appeal which was registered as Title Appeal No. 20B of 1973. During the pendency of this appeal the West Bengal Estate Acquisition (Second Amendment) Act 1973 by which section 57B was inserted in the said Act was enforced. A preliminary objection was taken on behalf of the appellant that the suit has abated under the provisions of section 57B of the West Bengal Estates Acquisition Act. On May 17, 1974 the subordinate Judge, Third Court, Midnapore, held that the suit had abated under section 57B of the said Act and set aside the Judgment and decree passed by the Trial Court.