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High Court Of Calcutta
ARUN KUMAR MITRA
USHA GHOSH, DEFENDANT - Appellant
Versus
RABINDRANATH Das - Respondent
S. A. 192 Of 1999
Decided On : 03/07/2005
The instant appeal concerns the issue of whether a suit property is non-agricultural in character and if so, whether the plaintiff, who is a non-agricultural tenant, can be considered an intermediary under the West Bengal Estates Acquisition Act, 1953. The Court held that the suit property is indeed non-agricultural and that the plaintiff, being a non-agricultural tenant, cannot be considered an intermediary under the Act. The Court relied on several precedents and statutes to arrive at its decision.
Fact of the Case:
The disputed property in question is a small plot of land with a structure standing on it. The plaintiff, Kanak Sarkar, filed a suit claiming ownership of the property, alleging that it was benami in the name of Monmotho Ghosh, the brother-in-law of Sushil Sarkar, Kanak's father. The defendants, including Usha Ghosh, the subsequent assignee of the property, contested the claim, arguing that Monmotho Ghosh was an intermediary under the West Bengal Estates Acquisition Act, 1953, and that his interest in the property had vested in the State upon the commencement of the Act. The plaintiff contended that Monmotho Ghosh was not an intermediary but a benamidar, and that the property was never vested in the State.
Finding of the Court:
The Court found that the suit property was non-agricultural in character, as evidenced by the entries in the record-of-rights and the fact that a structure stood on the land. The Court also found that the plaintiff, being a non-agricultural tenant, could not be considered an intermediary under the West Bengal Estates Acquisition Act, 1953, as per the definition provided in Section 2(i) of the Act. The Court relied on several precedents, including Shibsankar Nandy v. Prabartak Sangha (AIR 1967 SC 940), Fakir Chandra Chakravarty v. Pandit Sri Lakshmi Kant Jha (1971) 75 Cal WN 952, and Amulya Kr. Sur v. Dilip Kr. Sur (1976) 1 Cal LJ 58, to support its findings.
Issues: The main issues considered by the Court were: 1. Whether the suit property was non-agricultural in character. 2. Whether the plaintiff, being a non-agricultural tenant, could be considered an intermediary under the West Bengal Estates Acquisition Act, 1953.
Ratio Decidendi: The Court held that the suit property was non-agricultural in character, as evidenced by the entries in the record-of-rights and the fact that a structure stood on the land. The Court also found that the plaintiff, being a non-agricultural tenant, could not be considered an intermediary under the West Bengal Estates Acquisition Act, 1953, as per the definition provided in Section 2(i) of the Act. The Court relied on several precedents, including Shibsankar Nandy v. Prabartak Sangha (AIR 1967 SC 940), Fakir Chandra Chakravarty v. Pandit Sri Lakshmi Kant Jha (1971) 75 Cal WN 952, and Amulya Kr. Sur v. Dilip Kr. Sur (1976) 1 Cal LJ 58, to support its findings.
Final Decision: The Court dismissed all three appeals filed by the defendants, upholding the judgment of the lower appellate Court. The Court held that the plaintiff was entitled to a declaration of title in respect of the suit property and to recover possession of the property from the defendants.
( 1 ) THREE second appeals being S. A. Nos. 192, 193 and 194 of 1999 came up for hearing together inasmuch these three second appeals came out of analogous judgments passed by the first appellate Court hearing three first appeals analogously, consequent to the judgment and decree (single) passed in three title suits which were also heard analogously. The factual background of the three appeals in brief can be stated in the manner as follows :-One Sarojini Sarkar, the grandmother of sri Kanak Kr. Sarkar (the plaintiff of Title suit No. 614 of 1978) was the zamindar in respect of the property in C. S. Dag No. 235 under C. S. Khatian No. 1497 in Mouza-Chanak. In R. S. Record of Rights the said dag and Khatian were split up and recorded as Dag No. 1) 557, Khatian No.-1970 where occupant was shown as Dhanapati Bhakat; 2) Dag No. 558, Khatian No.-1971 where occupant shown as Ramcharan Ram and; 3) Dag No. 559, Khatian No.-1972 which was shown as Dakhalkar Chandina under the occupation of one Ledu Karmakar, S/o-Late radharaman Karmakar and the land involved here was 0. 60 decimals with structure standing thereon.
( 2 ) SAID Sarojini Sarkar sold the said suit property to Sri Monmothonath Ghosh, the brother-in-law of Sushil Sarkar (father of the plaintiff in T. S. No. 614 of 1978 Kanak Kr. Sarkar) through a registered sale deed dated 16-11-1931.
( 3 ) MONMOTHONATH Ghosh, who is the brother-in-law of Sushil Sarkar filed a suit being Title Suit No. 783 of 1954 against Ledu karmakar in respect of land along with structure thereon in respect of 'a' schedule property (Title Suit No. 614 of 1978) for eviction and khas possession.
( 4 ) WEST Bengal Estates Acquisition Act came into force in 1953 w. e. f. 12-2-1954. In view of notification issued under Section 4 of the said Act all intermediary interest vested. w. e. f. 10-4-1956 (Rayati and under rayati interest vested ).
( 5 ) TITLE Suit No. 783 of 1954 filed by sushil Sarkar against Ledu Karmakar was decreed on 6-8-1956. Ledu Karmakar preferred appeal against the said decree which was registered as Title Appeal No. 884 of 1956. On 29-7-1957 the said appeal was dismissed. Monmothonath Ghosh filed Title execution Case No. 225 of 1960 against ledu Karmakar for recovery of possession. In the aforesaid execution case a compromise petition was filed by Santosh Kr. Karmakar, one of the heirs of Ledu karmakar and Monmothonath Ghosh and possession was recovered from Santosh Kr. Karmakar by Monmothonath Ghosh by virtue of that compromise petition on 18-1-1961.
( 6 ) ON 11-4-1963 Certificate Case being numbered 786 of 1963-64 was started against Ledu karmakar and subsequently against his legal heirs; 1) Santosh Kr. Karmakar (2) Paresh Ch. Karmakar (3) Naresh Ch. Karmakar and (4)Jogesh Ch. Karmakar, all sons of late Ledu mohan Karmakar by the Junior Land Reforms officer, Khardah. The said Certificate was allowed and the properties put to sale in auction.
( 7 ) NO appeal was filed against the order allowing certificate and auction sale by Ledu karmakar or his heirs.
( 8 ) MONMOTHONATH Ghosh filed a Title Suit being numbered 71 of 1965 against Sarojini sarkar and subsequently Sushil Krishna sarkar was substituted on the death of sarojini Sarkar.
( 9 ) ANIL Krishna Sarkar purchased the property in auction sale in Certificate Case no. 786 of 1963-64 mentioned above. Anil krishna Sarkar is the another son of Sarojini sarkar and brother of Sushil Sarkar. This anil Krishna Sarkar filed Title Suit No. 126 of 1966 against Sushil Sarkar.
( 10 ) MONMOTHONATH Ghosh filed an application for setting aside the auction sale which was registered as Misc. Case No. 1 of 1966-67.
( 11 ) ON 3-1-1972 Sudhir Chowdhury purchased the property from Anil Sarkar, who purchased from auction sale. On 6-3-1972 certificate sale was confirmed by Certificate officer. On 24-3-1972 Misc. Case No. 1 of 1966-67 filed by Monmothonath Ghosh for setting aside auction sale was rejected. Possession was delivered to Ani
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