BALAI CHANDRA PRAMANIK Vs. SHILA HALDER & ORS

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff/appellant against the judgment and decree dated 10th June, 1993 passed by the learned Assistant District Judge, Diamond Harbour in title appeal no.143 of 1992 reversing the judgment and decree dated 21.03.1981 passed by the learned Munsif, Diamond Harbour, 1st Court, in title suit no. 43 of 1984. Appellant filed a suit for eviction against the respondent/defendant contending, inter alia, that the defendant has no right, title and interest over the suit properties and that without such right, title and interest he forcibly dispossessed the plaintiff from Kha schedule land and constructed a Ghar measuring 48 links X 27 links and was residing thereat. The defendant also tried to erect wall of the said Ghar on and from 8th Magh, 1390 B.S. Although, he has no right to possess the suit property. The defendant, thereafter, also threatened the plaintiff to dispossess him from Ka schedule property. The defendants since dispossessed the plaintiffs from kha schedule property and was trying to dispossess the plaintiffs from Ka schedule property, cause of action for the suit arose. It is admitted that the suit land belonged to one Himanshu Sekhar Ghosh. Jogesh Chandra Bandopadhyay took settlement from Himanshu Ghosh in 1944 by way of a lease. Himanshu Ghosh delivered possession to Jogesh Chandra Bandhopadhyay who subsequently submitted B form (certified copy of which has been marked as Exbt.7). Jogesh Chandra Bandhopadhyay while in possession, sold the land to plaintiff by Kobala dated 22.06.1983 [Exbt.2(a)]. In the R.S. Record-of- Rights name of Himanshu Ghosh appeared. According to the plaintiff Jogesh Chandra Bandhopadhyay filed B form and retained suit and nonsuited land and paid rent to State of West Bengal. Jogesh Chandra Bandhopadhyay filed B form and sold the suit land to plaintiff by Kobala dated Ashar, 1390 BS corresponding to 22.06.1983. The alternative, which was made out by the plaintiff is that Himanshu Ghosh sold the suit and non-suited land to Tarapada and Utthanpada Pathak. From whom the plaintiff purchased in the year 1387 BS and the deed is marked as Exbt.2. The suit has been filed on 22nd February, 1984 and plaintiff prayed for declaration and injunction in respect of Ka schedule property and declaration of khas possession of Kha schedule property. Learned trial Court decreed the suit and declared the plaintiffs title to the suit property in both schedule Ka and Kha . Plaintiff s title and possession in the Ka schedule property has also been confirmed. The defendant has been permanently restrained from disturbing the plaintiff s possession over the Ka schedule property and changed the nature and character of the Kha schedule property. While decreeing the suit the trial Court held that plaintiffs predecessor-in-title Jogesh Chandra Bandhopadhyay retained the suit land upon submitting B form and in the proceeding under Section 44(2a) tenancy of Jogesh Chandra Bandhopadhyay has been accepted by the State and, therefore, title of Jogesh Chandra Bandhopadhyay in respect of the suit property has been confirmed by the State. Since, Jogesh was found to be the real owner of the suit property the plaintiffs appear to have acquired good title by purchase from Jogesh. Moreover, the trial Court held that on evidence that State has accepted the tenancy of the plaintiffs and granted dakhilas in the name of plaintiff [marked exhibits 1 and 1(a)] and plaintiff s name has also been mutated by the State of West Bengal. So far, possession of plaintiff over the suit land the learned trial Court on evidence and on consideration of the B form submitted by Jogesh Chandra Bandhopadhyay being Exbt.7 which was compared with the original and, therefore, cannot be allowed to be challenged by the defendant, who is a mere trespasser over the Kha schedule property. The defence case as has been advanced the suit land was a fallow land and defendant entered into possession over the said land and has acquired title by adverse possession.

(2.) The defendant made out a case that Jogesh was a big raiyat and he had non-agricultural land in excess of ceiling prescribed under the West Bengal Estate Acquisition Act and that being so the land not being retained, vested to the State and plaintiff acquired no right, title and interest therein and the defendant because of his possession has become the owner by adverse possession. The law is settled that simply by possessing land one cannot become the owner by adverse possession. The defendant has not produced any documentary evidence in support of his claim that he was ever in possession of the suit land nor anything is revealed from his oral evidence that he ever possessed the land against any person to be the true owner. No hostile animus is available in the pleading of the defendant. When the defendant (DW1) in his evidence deposed When I first entered into the suit land I did not know the owner of the land. Therefore, the claim of adverse possession could not be substantiated by the defendant. And the trial Court has rightly decreed the suit in favour of the plaintiff. The decisions in the cases of S.M. Karim Vs. Mst. Bibi Sakina, 1964 AIR(SC) 1254 and Premendu Bhusan Mondal Vs. Sripati Ranjan Chakravarty, 1976 AIR(Cal) 55 relied on by the plaintiff before the learned trial Court is of much substance to destroy the defence case that no amount of adverse possession could be established by the defendant over the suit land. The defendant challenged the decision of the trial Court and the Appellate Court reversed the judgment of the trial Court. While reversing the judgment of the trial Court the Appellate Court has held that since the defendant was in possession over the suit property for more than 12 years within the knowledge of the plaintiff and his alleged predecessor and others and without objection the defendant has succeeded to make out a case of adverse possession. The Appeal Court held that plaintiff is to prove that he was in possession for a period over 12 years prior to institution of the suit. While holding so, the Appeal Court did not consider it that when B form was submitted by the predecessor-in-interest of the plaintiff, he acquired transferrable title to the suit property and by virtue of the deed of sale executed in favour of the plaintiff he acquired title and further by the documentary evidence that his predecessor s name was recorded in the R.S. Record of Rights, possession through his predecessor gets confirmed. In my view, the Appellate Court has misdirected itself in holding that the defendant was admittedly in possession of the suit property and that the plaintiff failed to prove or was required to prove that he had possession over 12 years before filing of the suit when admittedly Himanshu was the owner of the property and who settled the land in favour of Jogesh Chandra Bandhopadhyay before Estate Acquisition Act came into force and who retained land by filing B form and whose tenancy in the land was regularised by the government of West Bengal by accepting cess/rent.

(3.) Question before this Court in second appeal is whether the learned trial Court was justified in passing the decree relying on the oral and documentary evidence adduced. While it is true that the best evidence being the lease deed was not placed before the learned trial Court but at the same time it is established fact that B form was submitted by Jogesh before the Revenue Officer was an exhibited document (Exbt.7) where reference of registered lease was made to the extent that the same had been executed in 1944 between Himanshu and Jogesh in respect of suit land for 17 years from 1944, that is, the deed remained valid till 1961 when Estate Acquisition Act came into force in 1953. The lessee under the said lease acquired valid right, title and interest by operation of law. Applying the principle of preponderance of probabilities, it can safely be held that there was registered lease deed between Himanshu and Jogesh in respect of the suit property at least for a period of 17 years on the day when the Estate Acquisition Act was made enforceable or was enforced in 1953. Jogesh was the raiyat and Himanshu was the intermidiatory in respect of the suit land. Since appellant purchased the suit land from Jogesh he also acquired raiyaty interest within the meaning of Section 2(i) of the West Bengal Estate Acquisition Act, 1953. This part has not been considered by the learned Appellate Court below. The State of West Bengal is a proforma defendant in the suit. It was never objected that the State received rent from the plaintiff in respect of the suit land and thereby he acquired the status of Raiyat and that being so the defendant could not have any claim that the land remained as a vested land and he acquired any right over the government land being vested by adverse possession. The defendant has no other independent stand to say that he was in possession over the suit land and such possession was ever recognized by any State machinery either by recording his name in the Record-of-Rights or by issuing a patta or otherwise if that be so simply claiming that the defendant was in possession over the vested land does not give him any right to possess the land.