Sri Karunamoy Kanjilal and Others vs State of West Bengal and Another

Kalidas Mukherjee, J.—This Second Appeal has been preferred by the plaintiffs/appellants assailing the judgment and decree passed by learned Civil Judge, Senior Division, Asansol in Title Appeal No. 76 of 2000 affirming the judgment and decree passed by learned Civil Judge, Junior Division, second Court, Asansol in T.S. No. 230 of 1991. The case of the plaintiffs/appellants in short is that the suit lands originally belonged to Bhujanga Bhusan Kanjilal (since deceased) in intermediary rights. Bhujanga Bhusan Kanjilal duly submitted return in ''B'' Form u/s 6 of the West Bengal Estate Acquisition Act by exercising his option to retain the lands described in the schedule of the plaint along with other lands. Bhujanga Bhusan Kanjilal did not hold any land in excess of the ceiling limit prescribed under the West Bengal Estate Acquisition Act. Bhujanga Bhusan was under the impression that Khanda Khatians would be made in respect of the lands owned and possessed by him. He was in khas possession of all the lands described in the schedule of the plaint which were retained by him till his death in the year 1961. After his death, the plaintiffs being the heirs have been in khas possession of the suit lands as absolute owners thereof. In December 1984, the plaintiffs for the first time came to learn from the Tahsilder attached to the office of JLRO, Raniganj, that the suit lands had been vested to the State of West Bengal. Thereupon, plaintiff No. 1 on behalf of all the plaintiffs met the JLRO in January, 1985. The plaintiff No. 1 was advised to submit another fresh return in ''B'' form retaining all their lands including the suit lands. Accordingly, the plaintiffs submitted return in �B� Form on 25.02.1985 retaining thereby all the lands including the suit lands as inherited by them from Bhujanga Bhusan Kanjilal. After submitting the said return, the plaintiff met the JLRO who assured that Khanda Khatians would be made in their names as late Bhujanga Bhusan Kanjilal did not hold any land in excess of the ceiling limit. The plaintiffs waited for about 6/7 months and thereafter in April, 1986 they came to learn that no Khanda Khatian was opened in their names in respect of the suit properties. The plaintiffs thereafter submitted a fresh application on 18.09.1989 to JLRO stating all the facts and prayed for opening the Khanda Khatian in their names in respect of the property left by late Bhujanga Bhusan Kanjilal. The plaintiffs were informed that their application dated 18.9.1989 was forwarded to D.L.R.O., Burdwan and thereafter the same was forwarded to BL & LRO, Raniganj vide Memo No. 18 dated 25.9.1989. Ultimately, no Khanda Khatian was opened in the name of the plaintiffs and the plaintiffs after serving notice u/s 80 C.P.C. instituted the suit praying for declaration of title and permanent injunction.

The State of West Bengal contested the suit and filed written statement denying the contentions raised by the plaintiffs in the plaint. It is the case of the State of West Bengal that the suit property was owned by Bhujanga Bhusan Kanjilal with "Madhyasathadhikari Chirasthayee" rights and the suit lands duly vested to the State of West Bengal. The proposal for opening Khanda Khatian was not applicable to the case of the plaintiffs as the total area was 6.06 acres of land.

The learned Civil Judge, Junior division, dismissed the suit holding that the suit lands were in possession of Bhujanga Bhusan Kanjilal and after his death in the possession of the plaintiffs. The learned Civil Judge, Junior Division further observed that the suit lands are in the possession of the plaintiffs though the possession has not been challenged. It has been held that in absence of sufficient evidence as to the retention of the suit lands or whether the plaintiffs have lands within the ceiling limit or not, the plaintiffs are not entitled to get a decree for declaration of title.

The learned First Appellate Court affirming the judgment and decree and passed by the learned Civil Judge, Junior Division, held that the plaintiffs could not prove that they or their predecessors-in-interest retained the suit property by submitting ''B'' Form. The defendant State of West Bengal did not contest the first appeal preferred by the plaintiffs.

In this Second Appeal the substantial questions of law have been formulated as hereunder:

For that the learned Judges, both the Courts below have erred in law by not holding that so long as the intermediarieshave not delivered possession to the Collector under Section10(2) of the West Bengal Estates Acquisition Act, 1953 theyhave the right to claim retention of the suit land, as such the impugned judgment and decree is bad in law and liable to be set aside.

For that the findings of the learned Judge, Court of appeal below that all the lands of intermediaries vested to the state since the date of notification under West Bengal Estates Acquisition Act, 1953. Vesting and the right of retention are two different transactions though they take place simultaneously, and the Court below erred in law inasmuch asin view of the provisions of Section 6(5) of the West Bengal Estates Acquisition Act 1953 and settled judgment of the Hon�ble Court that an intermediary has a right to retain theland even after the prescribed period of time limit so long the said intermediary has not parted with the possession of the land. As such said findings are not based upon the settledprinciples of law and liable to be set aside as arbitrary andperverse.

None appeared on behalf of the respondents in this appeal.

The learned Counsel appearing on behalf of the appellants submits that the State did not take possession u/s 10(2) of the West Bengal Estate Acquisition Act and, the plaintiffs are undisputedly in possession the suit lands. It is contended that both the learned Courts below did not consider this aspect of the matter. It is further contended that Bhujanga Bhusan Kanjilal did not hold any land in excess of the ceiling limit as prescribed under the West Bengal Estate Acquisition Act and the suit lands having been retained by the intermediary, it cannot vest to the State. In support of such contention the learned Counsel for the appellants has referred to and cited the decisions reported in 2001 (3) CHN 376 Arati Dutta v. State of West Bengal; Smt. Sreelatha Bhupal Vs. Govt. of Andhra Pradesh Represented by its Secretary Revenue Department, Hyderabad and others, ; AIR 1982 (Cal) 273 Jatindra Steel and Tubes Ltd. v. A and J Main and Co. (Eng.) Pvt. Ltd. and Ors.; Hernek Singh Vs. Financial Commissioner, Appeals, Punjab and Others, ; Sasadhar Samanta Vs. State of West Bengal, ; AIR 1969 SC 684 State of Gujarat v. Shantilal Mangaldas and Ors.; H.P. Pyarejan Vs. Dasappa (Dead) by LRs. and Others, ; Hari Singh Vs. Kanhaiya Lal, ; (2) CHN 23 Shah Mansukhlal Chhaganial (d) through Ors. v. Gohil Amarsing Govindbhai (d) through Ors.

Undisputedly, Bhujanga Bhusan Kanjilal was the original owner of the suit property. It is the case of the plaintiffs that Bhujanga Bhusan retained the suit property along with other properties by submitting ''B'' Form and thereafter the plaintiffs on being advised by the JLRO submitted a fresh ''B'' Form retaining the suit property. The properties in question were held in intermediary rights, and from the date of notification, the estate of the intermediary vested to State subject to the right of retention u/s 6(5) of the West Bengal Estate Acquisition Act. It is the specific contention of the plaintiffs and P.W. 1 has stated that Bhujanga Bhusan Kanjilal had no land in excess of the ceiling limit as prescribed under the West Bengal Estate Acquisition Act and he retained the suit lands by submitting ''B'' Form. Before the learned Trial Court, the defendant State of West Bengal submitted written statement wherein it has been averred that the suit lands vested to the State and the opening of Khanda Khatians was not applicable as the total land was 6.06 acres. No evidence was adduced on behalf of the defendants before the learned Trial Court. It is not the case of the defendant that any B.R. case was started. It is also not the case of the State that pursuant to the vesting, possession u/s 10(2) of the West Bengal Estate Acquisition Act was taken. No paper whatsoever relating to the proceeding u/s 10(2) of the Act was submitted by the defendant State before the learned Trial Court. In such view of the matter, the contention of the plaintiffs as averred in the plaint and the evidence of P.W. 1 that late Bhujanga Bhusan Kanjilal had no land in excess of the ceiling limit and the retention thereof by submitting ''B'' Form remains uncontroverted. It is also in evidence of P.W. 1 that the plaintiffs submitted a fresh return in �B� Form retaining the suit land. It is also undisputed that the plaintiffs are in possession of the suit lands. In the decision reported in 2001 (3) CHN 376 (Supra) it has been held by the Hon''ble Single Judge of this Court in para 6 & 7 as follows:

Under the aforesaid Section 6(5) of the West Bengal Estate Acquisition Act, an intermediary has a right toretain the land and it has been well settled by this Court that an opportunity even after the prescribed time limitcan be given to a landlord to make a claim for retentionof land u/s 6(1) (c) (d) and (j) thereof so long thesaid landlord had not parted with the possession of the land. In the case of Gour Gopal Mitra v. State of West Bengal 2001 (3) CHN 376, P.B. Mukherjee, J. (as His Lordship then was) specifically held as under:

In other words it will mean this that so long as the intermediary has not delivered possession to the Collector u/s 10(2) of the Act he has the right to claim retention.

In the present case, admittedly the plaintiffs have notdelivered possession of the suit lands to the State of WestBengal within the meaning of the aforesaid provision ofSection 10(2) of the said Act. It has been specifically held by the learned Munsif while deciding the suit that plaintiffs are in possession of the suit lands....

In another decision reported in Sasadhar Samanta Vs. State of West Bengal, para 4 it has been held by the Hon''ble single Judge of this Court as follows:

The learned Advocate for the appellant has cited several cases namely, those reported in Gour Gopal Mitra and Another Vs. State of West Bengal and Others, : 70 CWN 652 paragraphs 38 to 41 Subodh Kumar Mitra and Another Vs. The Revenue Officer and Others, to prove that retention may be allowed even after the period prescribed by law provided the lands have not been possessed by the State. In this connection both the Courts below have found that though the plea taken by the respondent was that the lands have vested in the State and they have not taken delivery of the same on behalf of the State, the plaintiff/appellant is still in possession of the same. On the basis of the principles laid down in the above mentioned cases, I allow this appeal without costs and decree the suit in respect of the entire lands described in the Schedules to the plaint after setting aside the decree of the lower appellate Court. The suit is decreed without cost. The respondent State of West Bengal is permanently injuncted from interfering with the entire suit lands.

Following the ratio of the decisions as referred to above, I find that since the plaintiffs are in possession of the suit lands and the defendants could not prove that they took possession of the same u/s 10(2) of the Estate Acquisition Act, the plaintiffs are entitled to retain the suit lands and P.W. 1 has clearly stated that they have retained the suit lands by submitting a fresh ''B'' Form. Both the learned Courts below did not discuss this aspect of the matter and it was held by both the learned Courts below that the plaintiffs although in possession of the suit lands could not prove their title by showing that they retained the suit land by submitting �B� Form. Having regard to the evidence on record and the settled position of law as discussed above, I am of the considered view that both the learned Courts below erred in dismissing the case of the plaintiffs. The plaintiffs have right, title and interest in the suit lands and the defendants are restrained permanently from creating any disturbance in the possession of the plaintiffs or interfering with the suit property. The judgment and decree passed by the learned Courts below are set aside and the suit is decreed. The substantial questions of law as framed in this appeal are answered accordingly. The appeal is thus allowed. There will be no order as to costs.

Let copy of this judgment along with L.C.R. be sent to the learned Court below immediately.

Urgent Xerox certified copy, if applied, be handed over to the parties as early as possible.