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1978 Supreme(Cal) 476
High Court Of Calcutta
A. K. SEN
CHARAN SANTHAL - Appellant
Versus
INDRAJIT SEN - Respondent
A. F. A. D. 1207 Of 1969
Decided On : 07/25/1978
AMAL CHATTERJI, BUDDHADEV CHATTERJEE, S.S.BASU, SUDIPTA MOITRA
The decision of the Bhagchas Board on the issue of tenancy under Section 18(1) of the West Bengal Land Reforms Act, 1955, is merely incidental and does not bar the jurisdiction of the civil court to decide the question afresh.
Headnote:
BARGADAR - TENANCY - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 18(1), 18(2), 21 - CIVIL COURT JURISDICTION - AWARD OF BHAGCHAS BOARD - CONCLUSIVENESS - ADJUDICATION OF TENANCY DISPUTE - SCOPE AND EFFECT - MERITS OF TENANCY CLAIM - EVIDENCE - APPRECIATION - POSSESSION - DELIVERY IN EXECUTION OF AWARD - ACTUAL OR SYMBOLICAL - LIMITATION.
Fact of the Case:
Plaintiffs, claiming ownership of agricultural land, instituted a suit for recovery of khas possession and injunction against defendant No. 1, alleging that he was a bargadar. Defendant No. 1 contested the claim, asserting tenancy rights and claiming limited title by adverse possession. The trial court dismissed the suit, finding that the defendant had established his tenancy since 1350 B.S. and had acquired limited title by possession. On appeal, the lower appellate court reversed the decision, holding that the issue of tenancy was concluded by the award of the Bhagchas Board under Section 18(1) of the West Bengal Land Reforms Act, 1955, and that the plaintiffs were entitled to recover possession.
Finding of the Court:
The High Court held that the decision of the Bhagchas Board on the issue of tenancy was merely incidental and did not bar the jurisdiction of the civil court to decide the question afresh. However, on merits, the court found that the defendant had failed to establish his tenancy claim and that the plaintiffs were entitled to recover possession.
Issues: 1. Whether the award of the Bhagchas Board under Section 18(1) of the West Bengal Land Reforms Act, 1955, conclusively determined the issue of tenancy between the parties, ousting the jurisdiction of the civil court to redetermine the same? 2. Whether the defendant had established his tenancy claim on merits? 3. Whether the plaintiffs were entitled to recover possession of the suit land?
Ratio Decidendi: 1. The court held that the decision of the Bhagchas Board on the issue of tenancy was merely incidental to the dispute under Section 18(1) of the Act and did not bar the jurisdiction of the civil court to decide the question afresh. The court relied on the decision in Sudarshan v. Janaki, which held that the adjudication of a dispute as to whether a person is a bargadar or not had not been left exclusively with the special tribunal under the Act. 2. On merits, the court found that the defendant had failed to establish his tenancy claim. The court noted that the defendant had been recorded as a bargadar in the revisional record of rights and had suffered an order of eviction as a bargadar in a proceeding under Section 18(1) of the Act. The court also found that the defendant's evidence in support of his tenancy claim was weak and unreliable. 3. The court held that the plaintiffs were entitled to recover possession of the suit land. The court found that the plaintiffs had taken delivery of possession in execution of the Bhagchas Board's award and that the suit was filed within the limitation period from the date of dispossession.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS appeal is by the defendant and is directed against an appellate decree dated June 25, 1968. It arises out of a suit for recovery of khas possession and injunction winch was dismissed by the trial court but was decreed in part by the lower appellate court. The plaintiffs, who are the respondents in the present appeal, instituted the suit on the allegation that they are the owners of 2. 73 acres of agricultural land appertaining to R. S. plot Nos. 423, 423/477 and 423/478 of Mouza Madhuban, P. S. Kalna, District-Burdwan of which defendant No. 1 was a bargadar. The plaintiffs started a proceeding under Section 18 (1) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act) for termination of cultivation by defendant No. 1 in respect of such lands and also for recovery of owner's share of produce before the Bhagchas Board, Kalna in the year 1956, and obtained an award in their favour on Jan 10, 1957. The award was upheld on an appeal preferred by the present defendant No. 1 on April, 15, 1957, and on April 26, 1958, the plaintiffs obtained possession of the said lands in execution of the award. Since then the plaintiffs were in khas possession of the said lands but defendant No. 1 having threatened the plaintiffs with dispossession they started a proceeding under Section 11 of the Cr. P. C. through their employee Kanailal Roy and obtained an order of injunction as against defendant No. 1. Defendant No. 1, however forcibly cut away the paddy over which a theft case was started but defendant No. 1 was ultimately acquitted. Thereafter, defendant No. 1 started a proceeding against the plaintiffs under Section 144 of the Cr. P. C. which was converted into a proceeding under Section 145 thereof and in that proceeding defendant No, 1 was adjudged to be in possession. Hence, the suit was instituted for recovery of possession and permanent injunction restraining the defendants from disturbing the plaintiffs' possession thereof.
( 2 ) THE suit was contested by defendant No. 1 appellant. He denied the plaintiffs' claim that he was merely a bargadar in respect of the suit lands and he claimed a tenancy on an annual rent of Rs. 21-8-6 in respect of 2. 84 acres of land including the 2. 73 decimals of suit land which originally appertained to D. S. plot No. 423 since subdivided into R. S. plots 423, 423/477, 23/478 (the suit plots) and 423/479 measuring. 11 acre. According to the defendant, he having taken settlement of that entire 2. 84 acres of land had all along been in peaceful possession thereof. He erected a homestead on. 11 acre of land appertaining to R. S. plot 423/479 and the plaintiffs instituted a suit for eviction from that. 11 acre of land in Title Suit No. 78 of 1965 which was dismissed upon a finding that defendant No. 1 is a tenant under the plaintiffs and not a licensee as claimed in that suit. Since in that suit the tenancy claimed by defendant No. 1 which also covers the suit lands was upheld, the plaintiffs can no longer disclaim the said tenancy. The defendant No. 1 denied the plaintiffs' claim that possession was ever recovered from him in execution of the Bhagchas award and further claimed that he being in continuous possession since 1350 B. S. the plaintiffs' claim must be held to be barred by limitation and he must also be held to have acquired limited title of a tenant by adverse possession for long over 12 years prior to the present suit which was instituted on Aug. 13, 1966. The suit was dismissed by the learned Munsif who came to the conclusion that notwithstanding the entry in the records of rights in favour of the plaintiffs, the plaintiffs have failed to prove that the defendant no. 1 was a bargadar under them. The learned Munsif further found that the defendant No. 1 on the other hand had been able to prove his tenancy since 1350 B. S. and in any event, the defendant No. 1 had well established his alternative defence case of acquisition of limited title by
