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High Court Of Calcutta
Salil Kumar Datta, G. N. Ray
STATE OF WEST BENGAL - Appellant
Versus
JYOTSNA BHOWMIK - Respondent
C. R. 954 Of 1972
Decided On : 02/08/1977
WEST BENGAL ESTATES ACQUISITION ACT, 1953 - SECTION 44 (2A) - REVISION OF RECORD OF RIGHTS - SUO MOTU PROCEEDING - PRIMA FACIE CASE - EVIDENCE - INTERPRETATION OF DEED OF SETTLEMENT - POSSESSION OF LAND - BURDEN OF PROOF.
Fact of the Case:
The Revenue Officer initiated a suo motu proceeding under Section 44 (2a) of the West Bengal Estates Acquisition Act, 1953, to revise the record of rights in respect of certain lands. The Revenue Officer found that a deed of settlement executed by the original owner of the lands in favor of his family members was a sham transaction and that the lands were in possession of the original owner till his death. The Tribunal set aside the order of the Revenue Officer, holding that the finding of the Revenue Officer was beyond the scope of an enquiry under Section 44 (2a).
Finding of the Court:
The High Court held that there was no prima facie case for starting a formal proceeding under Section 44 (2a) of the Act. The High Court also held that the evidence of the bargadars was not sufficient to hold that the properties were in possession of the original settlor or his heirs and that the document was not acted upon. The High Court further held that the Revenue Officer was under the impression that the original owner was alive long after the settlement till few years before the passing of the order, which had no factual basis.
Issues: 1. Whether there was a prima facie case for starting a formal proceeding under Section 44 (2a) of the Act? 2. Whether the evidence of the bargadars was sufficient to hold that the properties were in possession of the original settlor or his heirs and that the document was not acted upon? 3. Whether the Revenue Officer was correct in holding that the original owner was alive long after the settlement till few years before the passing of the order?
Ratio Decidendi: 1. The High Court held that there was no prima facie case for starting a formal proceeding under Section 44 (2a) of the Act because the records of the case did not indicate that there was a prima facie case for starting a formal proceeding. 2. The High Court held that the evidence of the bargadars was not sufficient to hold that the properties were in possession of the original settlor or his heirs and that the document was not acted upon because the mere fact that the landlord's share of crops was being received by the Manager does not by itself indicate that the lands were not in possession of the land settlers under the deed. 3. The High Court held that the Revenue Officer was incorrect in holding that the original owner was alive long after the settlement till few years before the passing of the order because the judgment of the Revenue Officer was of 1970 and it is now the admitted position that the original owner died on 12th April, 1953.
Final Decision: The High Court discharged the Rule and held that the order of the Revenue Officer was not sustainable.
( 1 ) THIS Rule is directed against an appellate order passed by the Tribunal under Section 44 (3) of the West Bengal Estates Acquisition Act whereby the order of the learned R. O. under Section 44 (2a) of the said Act of Jadavpur C Camp 3 in Case No. 3 of 1970 was set aside.
( 2 ) THE facts in brief are as follows:--On 6-8-1970, the Revenue Officer concerned started a suo motu proceeding under Section 44 (2a) giving rise to Case No. III of 1970. It was stated in the order initiating the proceeding that whereas it had been brought to his notice that the finally published khatian No. 147 of Mouza Debipurgurguria P. S. Joynagar had not been properly recorded, he directed the Peshkar to put up the relevant papers for his examination on 10-8-1970. On the said date the Revenue Officer recorded as follows:--"examined the R. O. Rs. and connected papers and records. I am satisfied that there is prima facie case for starting formal proceeding suo motu under Section 44 (2a) of the West Bengal Estates Acquisition Act, 1953 for revision of R. O. Rs. in respect of the khatians concerned. "thereafter notices were issued and at the hearing some bargadars in respect of the lands were examined. It was held by the Revenue Officer that a total area of 64. 92 acres of land was recorded in the name of Bankim Chandra Bhowmick at a rental of Rs. 168-6-0, During the R. S. operation in respect of the said khatian 12 as 16 gds. share was recorded in the name of (1) Jyotsna Bhowmick, (2) Bijali Bhowmick, (3) Sabyasachi Bhowmick and (4) Chandan Bhowmick each with 3as 4 gds share and the remaining 3as 4gds share were recorded in the name of Bankim Chandra Bhowmick. It was further found that the above 12as 16 gandas were recorded in the names of the said persons who were the two wives of the two sons of Bankim and two of his grandsons. According to the opposite party Deba Prosad Bhowmick, son of Bankim, appeared and stated that his father was- the owner of the above lands who executed a registered deed of settlement on 16-10-1952 and by that deed out of the total lands, about 52 acres were given to the two wives of his two sons and his two grandsons and the remaining 3as 4gds share continued to remain with Bankim. Bankim died on 12th April, 1953 before the date of vesting and as a result of vesting this remaining 3 annas 4 gandas were recorded in the name of his sons. The Revenue Officer examined the deed of settlement and found that the intention for the execution of the deed was not properly described therein and in order to evade payment of agricultural income-tax he might have purported to create this settlement in favour of the family members. The Revenue Officer further recorded that there was evidence on record to prove that the settlor Bankim was in possession of the land till his death which according to him, happened only a few years ago. On the evidence of the bargadars who deposed at the hearing, it was found that all the receipts given to them were in the name of Deba Prosad Bhowmick and others and only from 1375 BS, the names of Jyotsna and others were noted as 'malik'. The Revenue Officer was of opinion that the beneficiaries under the deed of settlement were not in possession of the land otherwise their names would have been disclosed in the receipts and from the very recitals the deed of settlement appear to be a sham transaction being motivated. Further no satisfactory evidence was adduced to prove the genuineness of the deed of settlement which was found not to have been acted upon. Accordingly by the order dated 29-9-1970 he corrected the record of rights holding the deed of settlement to be a void document and directed that the khatian was to be recorded in favour of the four sons of Bankim each with 4 annas share. The names of the beneficiaries under the deed of settlement were directed to be struck off from khatian No. 147 and the Khanda khatian No. 415 in the name of Jyotsna was treated as cancelled and also
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