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1964 Supreme(Cal) 1
HIGH COURT OF CALCUTTA
C. N. Laik
JATINDRA NATH MALIK - Appellant
Versus
SUSHILENDRA NATH PALIT - Respondent
A. F. A. D. 1278 Of 1963
Decided On : January 1, 1964
HARINARAYAN MUKHERJEE, MURARI MOHAN DUTT, RANJIT KUMAR BANERJEE, Saktinath Mukherjee
The presumption of correctness of the entries in the record of rights finally published under the West Bengal Estates Acquisition Act, 1953 and the Rules made thereunder, is rebuttable, and the burden of proof is on the party challenging the correctness of the entries to prove that the entries are wrong.
Headnote:
BARGADAR - TENANCY - RECORD OF RIGHTS - PRESUMPTION OF CORRECTNESS - BURDEN OF PROOF - WEST BENGAL ESTATES ACQUISITION ACT, 1953 - SECTIONS 44(1), 44(3), 44(4), 46, 47 - WEST BENGAL LAND REFORMS ACT, 1955 - SECTIONS 17, 18, 21 - LIMITATION ACT - SECTION 5 - CIVIL PROCEDURE CODE - ORDER 21, RULE 35 - CONTEMPT OF COURT - RESTITUTION OF PROPERTY. 1. The presumption of correctness of the entries in the record of rights finally published under the West Bengal Estates Acquisition Act, 1953 and the Rules made thereunder, is rebuttable. 2. The burden of proof is on the party challenging the correctness of the entries in the record of rights to prove that the entries are wrong. 3. The provisions of Section 21 read with Section 18 of the West Bengal Land Reforms Act, 1955 do not oust the jurisdiction of the Civil Court to entertain a suit for declaration as to whether a person is a bargadar or a tenant. 4. The bar provided in Section 46 of the West Bengal Estates Acquisition Act is applicable only for the period upto the final publication of the record of rights and not after it. 5. An order of the Court restraining a party from taking possession of a property pending the hearing of an appeal is unconditional, the party is not entitled to take possession of the property even if the Rule is subsequently discharged on a condition which was not made a condition precedent for the discharge of the Rule. 6. If a party takes possession of a property in violation of an unconditional order of the Court restraining him from doing so, he is guilty of contempt of court. 7. The Court may grant restitution of the property to the party who was dispossessed in violation of the Court's order.
Fact of the Case:
The plaintiff-respondent filed a suit for a declaration that the defendant-appellant is a mere Bargadar in respect of the disputed property and not a tenant, either at cash or produce rent. The plaintiff also claimed that the entry in the record of rights is wrong and not binding on him.
Finding of the Court:
The trial court dismissed the suit, holding that the plaintiff failed to prove the bhag settlement and that the entries in the record of rights are correct. The appellate court allowed the appeal, holding that the defendant could not prove any foundation for the correctness of the entry as a tenant in the record of rights, and that the adverse inference drawn by the trial court against the plaintiff for non-production of the bhag receipts was wrong.
Issues: 1. Whether the presumption of correctness of the entries in the record of rights is rebuttable? 2. Who has the burden of proof to prove the correctness or incorrectness of the entries in the record of rights? 3. Whether the provisions of Section 21 read with Section 18 of the West Bengal Land Reforms Act, 1955 oust the jurisdiction of the Civil Court to entertain a suit for declaration as to whether a person is a bargadar or a tenant? 4. Whether the bar provided in Section 46 of the West Bengal Estates Acquisition Act is applicable only for the period upto the final publication of the record of rights and not after it? 5. Whether an order of the Court restraining a party from taking possession of a property pending the hearing of an appeal is unconditional, the party is not entitled to take possession of the property even if the Rule is subsequently discharged on a condition which was not made a condition precedent for the discharge of the Rule? 6. Whether if a party takes possession of a property in violation of an unconditional order of the Court restraining him from doing so, he is guilty of contempt of court? 7. Whether the Court may grant restitution of the property to the party who was dispossessed in violation of the Court's order?
Ratio Decidendi: 1. The presumption of correctness of the entries in the record of rights finally published under the West Bengal Estates Acquisition Act, 1953 and the Rules made thereunder, is rebuttable. 2. The burden of proof is on the party challenging the correctness of the entries in the record of rights to prove that the entries are wrong. 3. The provisions of Section 21 read with Section 18 of the West Bengal Land Reforms Act, 1955 do not oust the jurisdiction of the Civil Court to entertain a suit for declaration as to whether a person is a bargadar or a tenant. 4. The bar provided in Section 46 of the West Bengal Estates Acquisition Act is applicable only for the period upto the final publication of the record of rights and not after it. 5. An order of the Court restraining a party from taking possession of a property pending the hearing of an appeal is unconditional, the party is not entitled to take possession of the property even if the Rule is subsequently discharged on a condition which was not made a condition precedent for the discharge of the Rule. 6. If a party takes possession of a property in violation of an unconditional order of the Court restraining him from doing so, he is guilty of contempt of court. 7. The Court may grant restitution of the property to the party who was dispossessed in violation of the Court's order.
Final Decision: The appeal was allowed, the judgment and decree of the appellate court were set aside, and the judgment and decree of the trial court were affirmed and restored.
( 1 ) JEJUR, a village well known in the District of Hooghly for producing big people, is the seat-bed of this litigation and over about 3 bighas of land only, in which the defendant is the appellant in this second appeal. It arises out of a suit by the respondent for a declaration that the appellant is a mere Bargadar in respect of the disputed property and not a tenant, either at cash or produce rent. Relief is also claimed that the entry thereof in the record of rights is wrong and the same is not binding on the plaintiff-respondent.
( 2 ) THE plaintiff's case in short was that the defendant-appellant took bhag settlement from the plaintiff and delivered bhag produce upto the year 1342 B. S. Though the defendant is a Bargadar, the G. S. record, recorded him as a korfa tenant. The entry therein that the property is liable to assessment of rent was wrong. Against such alleged wrong recording, the plaintiff filed an objection under the provisions of Section 44 (1) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Act ). The Assistant Settlement Officer inter alia corrected the records with respect to the entry "liable to assessment of rent" and in its place, the entry "half share produce" was recorded. The plaintiff's appeal to the Tribunal under the provisions of Section 44 (3) of the Act, met with dismissal on the ground that the appeal was barred by time.
( 3 ) THE defence in short was that the defendant-appellant was a tenant and not a Bargadar; that he had been all along in possession as such, and the entries in the record of rights are correct.
( 4 ) THE learned Munsif on consideration of the evidence, both oral and documentary, dismissed the suit. It was found inter alia that the plaintiff though his title is admitted, failed to prove the bhag settlement. It was observed that there was no document creating the tenancy of the defendant and that the evidence as to the same was not satisfactory. As the plaintiff-respondent could not rebut the presumption of the correctness of the entries in the record of rights and as he could not prove the bhag settlement in favour of the defendant-appellant, the suit failed before him.
( 5 ) THE plaintiff having appealed, the Court of appeal below allowed the same, principally on three grounds. The main ground was that the defendant could not prove any foundation for the correctness of the entry as a tenant in the record of rights, relying on two decisions of this Court, namely, Kiran Chandra v. Srinath Chakrabarty, 31 Cal WN 135: AIR 1927 Cal 210 and Debendra Kumar v. Pramada Kanta Lahiry, 37 Cal WN 810: AIR 1933 Cal 879. Therefore, the Appellate Court held that the entry was erroneous, Consequently the defendant was found to be the Bargadar. The second ground was that the adverse inference drawn by the learned Munsif against the plaintiff for non-production of the bhag receipts was held to be wrong. According to the Court of Appeal below, the specific and requisite provision of the West Bengal Land Reforms Act, 1955 which was held to be mandatory by the learned Munsif, is erroneous; because the fact that the said provision did not come into force, had been over-looked by the learned Munsif. Lastly, on the statement appearing in the judgment of the Assistant Settlement Officer, Ex. 4, where it was recorded that the defendant-appellant paid half share of the produce in respect of the disputed property, the suit should be decreed. The learned Additional District Judge, therefore, allowed the appeal and set aside the judgment and decree of the learned Munsif against which the present second appeal has been preferred by the defendant.
( 6 ) MR. Murari Mohan Dutt, the learned advocate appearing in support of the appeal, contended that each and every reasoning given by the learned Additional District Judge was wrong. His first contention was that the onus was wrongly placed on his client, the defendant-appellant, to prove the foundation or b
