BAR DAS DEY AND CO Vs. ISHWAR TARAKESHWAR SIB THAKUR JIU SHEBAIT MOHANT SRIMAT DANDISWAMI HRISHIKESH ASHRAM

JUDGEMENT

(1.) This Second Appeal is at the instance of the defendants in Title Suit No. 37 of 1960 of the Court of the Second Munsif, Chandernagore. The plaintiff proceeded with the following case. The plaintiff is Sri Sri Iswar Tarakeswar Sib Thakur Jiu respectively (sic represented?) by She-bait Mohant Srimat Dandiswami Hrishikesh Asram. The defendants are Bar, Das, Dey & Co. proprietors of the same being GOUR Chandra Bar, Batakrishna Dey and Bijay Basanta Das. The defendants are alleged to have executed an agreement in favour of the plaintiff to take out sand up to 1365 B. S. from plot Nos. 689, 797, 530, 563/1109 comprising 8.86 acres equal to 27 bighas of land situate in Mouza Baligari recorded in Khatian Nos. 27, 23 and 24. The right to take the sand from the aforesaid land under the agreement was to be effective up to 1365 B.S. on payment of the plaintiff Rs. 66 per annum said to be the license fees. The defendants shall have no other concern with the land which shall always remain the property of the plaintiff. So soon as the plaintiff would claim any right the defendants would immediately withdraw themselves from the act of taking sands after 1365 B. S. The license fees for the period 1362 to 1365 B. S. remained unpaid at Rs. 66 per annum amounting in total to Rs. 330. The plaintiff served a notice on the defendants withdrawing the said defendant's license by revoking the license, and the license expired with the expiry of the notice. The defendants did not vacate the land. Hence the suit for recovery of the land and for arrears of license fees.

(2.) The defendants resisted the suit by a written statement. The defendants asserted that in view of the provisions of the West Bengal Estates Acquisition Act the plaintiffs interest as intermediary in the land had vested in the State of West Bengal wherefor the plaintiff lost any right to sue against the defendants. The defendants are tenants in respect of the land in dispute under the State of West Bengal that has already realised rent in respect of the disputed land from the defendants. It is further contended in the written statement that the interest of the defendants in the land in dispute has been correctly recorded in the finally published revisional record of rights. From 1347 Baisakh, the defendants came into occupation of the disputed land upon an oral settlement as tenants under the plaintiff at an annual rental of Rs. 54. On 10-7-41, there was confirmatory lease in respect of the defendants' tenancy in the land in dispute. Since Baisakh 1347 B. S., the defendants have been in occupation of the disputed land as tea-ants, and as such, have acquired a non-ejectable right therein. It is further asserted in the written statement that upon 1347 B. S., the defendants possessed the disputed land as tenants under the plaintiff, and that from 1362 B. S. the defendants had been possessing the disputed land as tenants under the State of West Bengal, The defendants contended in the written statement that when the plaintiff threatened to enhance the rent of the tenancy and coerced the defendants to execute a document said to be an agreement, the defendants did execute in 1350 B. S. one agreement under undue influence and coercion. The defendants disputed the sufficiency of the notice deter' mining the alleged licence in respect of the land in dispute.

(3.) Six issues were framed by the learned Munsif upon the pleadings. The learned Munsif in his judgment found that the intermediary interest of the plaintiff in the land in suit vested in the State of West Bengal from 1st Baisakh 1302 B. S., and that the plaintiff was not entitled to retain possession of the disputed land under the provisions of Section 6(1) Clauses (h) and (i) of the West Bengal Estates Acquisition Act. The learned Munsif found that in the disputed land the defendants have acquired a tenancy right. The learned Munsif found also that the plaintiff bad no right, title and interest in the disputed land, and as such, had no right to get arrears of the licence fees from 1362 to 1365 R. S. Accordingly, the learned Munsif dismissed the plaintiff's suit with costs. The plaintiff wont in appeal before the learned District Judge at Hooghly. The learned Judge found that a deed of lease was executed vide. Ext. A, but he considered this Ext. A through utter confusion of law only as a license for extracting sand from suit land being a unilateral document, and not a valid lease. The learned Judge proceeded however to interpret Ext. A upon a mistaken view of law as being a lease in respect of the disputed land for the period of 9 years from 1347 B. S. to 1355 B. S. creating a liability in the defendants to pay annual rent of Rs. 54 to the plaintiff. The learned Judge found that the option of renewal of the lease (Ext. A) was not exercised by the defendants on the expiry of the lease and held that after the expiry of the term of the lease it stood determined under Section 111 clause (a) of the Transfer of Property Act. Then the learned Judge proceeded to interpret Ext. 1 dated 27-4-50 registered on 8-8-50. This document, according to the learned Judge, was an agreement whereby the right to extract sand from the suit land for another period of 9 years from 1357 B. S. to 1365 B. S. was created with the defendant's liability to pay Rs. 67 as licence fees under Ext. 1. Then the learned Judge held that the document (Ext. 1) was a licence not a lease, and that the plaintiff realised licence fees of Rs. 66 though granting receipts is the form of rent receipt (Ext. 'B' series). The learned Judge relying on Ext. 1 and 'B' series came to the conclusion that the presumption arising out of the revisional survey khalians, Exts. F and Fi had been rebutted by Ext. 1 which is binding upon the parties. The learned Judge further found that the plaintiff held the suit land, as intermediary within the meaning of Section 2 Clause (i) of the Estates Acquisition Act. He held that under Section 6 Clause (i) of the Estates Acquisition Act debut tar of the deity being an endowment, both charitable and religious, would be entitled to retain in khas, in spite of the vesting of the intermediary interest in the disputed land in the Slate of West Bengal. Further the learned Judge found that the plaintiff's interest in the suit land had not been vested in the State where-for the plaintiff was not required to submit 'B' Form. The learned Judge then held that he is entitled to get the land in khas upon evicting the defendants therefrom and also granted a decree for arrears of licence fees. Ultimately the learned Judge decreed the suit after setting aside the judgment and decree passed by the learned Munsif and allowed the appeal.