CHARAN SANTHAL Vs. INDRAJIT SEN

JUDGEMENT

(1.) This appeal is by the defendant and is directed against an appellate decree dated June 25, 1968. It arises out of a suit for recovery of khas possession and injunction winch was dismissed by the trial court but was decreed in part by the lower appellate court. The plaintiffs, who are the respondents in the present appeal, instituted the suit on the allegation that they are the owners of 2.73 acres of agricultural land appertaining to R. S. plot Nos. 423, 423/477 and 423/478 of Mouza Madhuban, P.S. Kalna, District-Burdwan of which defendant No. 1 was a bargadar. The plaintiffs started a proceeding under Section 18 (1) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act) for termination of cultivation by defendant No. 1 in respect of such lands and also for recovery of owner's share of produce before the Bhagchas Board, Kalna in the year 1956, and obtained an award in their favour on Jan 10, 1957. The award was upheld on an appeal preferred by the present defendant No. 1 on April, 15, 1957, and on April 26, 1958, the plaintiffs obtained possession of the said lands in execution of the award. Since then the plaintiffs were in khas possession of the said lands but defendant No. 1 having threatened the plaintiffs with dispossession they started a proceeding under Section 11 of the Cr. P. C. through their employee Kanailal Roy and obtained an order of injunction as against defendant No. 1. Defendant No. 1, however forcibly cut away the paddy over which a theft case was started but defendant No. 1 was ultimately acquitted. Thereafter, defendant No. 1 started a proceeding against the plaintiffs under Section 144 of the Cr. P. C. which was converted into a proceeding under Section 145 thereof and in that proceeding defendant No, 1 was adjudged to be in possession. Hence, the suit was instituted for recovery of possession and permanent injunction restraining the defendants from disturbing the plaintiffs' possession thereof.

(2.) The suit was contested by defendant No. 1 appellant. He denied the plaintiffs' claim that he was merely a bargadar in respect of the suit lands and he claimed a tenancy on an annual rent of Rs. 21-8-6 in respect of 2.84 acres of land including the 2.73 decimals of suit land which originally appertained to D. S. plot No. 423 since subdivided into R. S. plots 423, 423/477, 23/478 (the suit plots) and 423/479 measuring .11 acre. According to the defendant, he having taken settlement of that entire 2.84 acres of land had all along been in peaceful possession thereof. He erected a homestead on .11 acre of land appertaining to R. S. plot 423/479 and the plaintiffs instituted a suit for eviction from that .11 acre of land in Title Suit No. 78 of 1965 which was dismissed upon a finding that defendant No. 1 is a tenant under the plaintiffs and not a licensee as claimed in that suit. Since in that suit the tenancy claimed by defendant No. 1 which also covers the suit lands was upheld, the plaintiffs can no longer disclaim the said tenancy. The defendant No. 1 denied the plaintiffs' claim that possession was ever recovered from him in execution of the Bhagchas award and further claimed that he being in continuous possession since 1350 B. S. the plaintiffs' claim must be held to be barred by limitation and he must also be held to have acquired limited title of a tenant by adverse possession for long over 12 years prior to the present suit which was instituted on Aug. 13, 1966. The suit was dismissed by the learned Munsif who came to the conclusion that notwithstanding the entry in the records of rights in favour of the plaintiffs, the plaintiffs have failed to prove that the defendant no. 1 was a bargadar under them. The learned Munsif further found that the defendant No. 1 on the other hand had been able to prove his tenancy since 1350 B. S. and in any event, the defendant No. 1 had well established his alternative defence case of acquisition of limited title by way of tenancy by possession over 12 years. On such conclusions, the learned Munsif dismissed the plaintiffs' suit.

(3.) The plaintiffs preferred an appeal. The learned Additional District Judge reversed the finding of the learned Munsif on consideration of evidence. He found that the defence case of tenancy cannot be said to have been substantiated by the evidence adduced by defendant No. 1. It was further found that the plaintiffs had taken possession of the suit lands in execution of the Bhagchas award wherein the defendant No. 1 was adjudged to be a bargadar and his claim of tenancy was overruled. In such circumstances the plaintiffs are entitled to recover possession of the suit land by virtue of their own title as the owners thereof and such a right had not been barred by limitation. The learned Judge further held that in view of the award made by the Bhagchas Board, the principal issue in the suit, viz., whether the defendant No. 1 is a bargadar or tenant, must also be held to be finally decided between the parties and as such cannot be reagitated in the present case in view of the provisions of Section 21 of the said Act. On findings as such, the learned Judge allowed the appeal in part and decreed the plaintiff's claim for recovery of possession though according to him the plaintiffs are not entitled to any relief by way of permanent injunction. The suit was accordingly decreed in part when the plaintiffs' claim for recovery of possession was decreed by the court of appeal below. Feeling aggrieved, the defendant No. 1 has preferred the present appeal.