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HIGH COURT OF CALCUTTA
B.N. Maitra, J.
Ananta Kumar Saha
Vs
Ajoy Kumar Biswas
SECOND APPEAL No. 1552 of 1972
Decided On : January 6, 1981
LAND TENURE - UTBANDI SYSTEM - ACQUISITION OF OCCUPANCY RIGHTS - WEST BENGAL ESTATES ACQUISITION ACT, 1953 - SECTIONS 44(1), 44(2A) - BENGAL TENANCY ACT, 1885 - SECTIONS 18, 20, 21, 23, 5(2), 180 - PRESUMPTION UNDER SECTION 103B - ADMISSION OF PARTY - RELEVANCE AND CONCLUSIVENESS.
Fact of the Case:
Plaintiff claimed title to disputed land, alleging inheritance from previous owners who held the land in utbandi system. Defendant No. 3 claimed title through purchase from previous tenants who had possessed the land for over 30 years. The A.S.O. recorded the disputed land in favor of Defendant No. 3, which was upheld by the lower appellate court.
Finding of the Court:
The court found that the plaintiff failed to establish his case and dismissed the suit. The court held that the previous owners did not have occupancy rights in the land and therefore could not transfer any title to the plaintiff. The court also found that the defendant No. 3 had acquired title to the land through adverse possession.
Issues: 1. Whether the previous owners had occupancy rights in the disputed land. 2. Whether the plaintiff acquired title to the land through inheritance. 3. Whether the defendant No. 3 acquired title to the land through adverse possession.
Ratio Decidendi: 1. The court held that the previous owners did not have occupancy rights in the disputed land because they held the land in utbandi system and there was no evidence that they had continuously possessed the land for 12 years. 2. The court held that the plaintiff did not acquire title to the land through inheritance because the previous owners did not have any title to transfer. 3. The court held that the defendant No. 3 had acquired title to the land through adverse possession because he had possessed the land for over 30 years.
Final Decision: The appeal was allowed, the judgment and decree appealed against were set aside, and the suit was dismissed.
The plaintiff has alleged that the disputed plot No. 202 having an area of 65 cents appertains to the khatian No. 1825 and the plot No. 202/2343 appertains to the Record of Rights No. 1142 of Mouza Jagadanandapur in the district of Nadia. The subject matter of the suit was held by one Sonai Sk. in utbandi system under the zamindar Pal Choudhury of Bethuadahari. He died leaving his two sons, Chatui and Chhoban, who inherited the property. On the 4th August, 1943, Chhoban Sk. sold his 8 annas share in the property by registered kobala to the plaintiff's father, Satkari, pro-defendant No. 4. Then by a registered sale deed dated the 25th August, 1943, Chatui sold his 8 annas share in the property to Gopal Chandra, pro-defendant No. 5. Thereafter, Sarkari, and Gopal possessed that property. By a registered sale deed dated the 20th August, 1956, Satkari sold his 8 annas share in the property to Gopal Chandra and thus the latter acquitted 16 annas title thereto. Satkari executed a deed of release for that property in favour of proforma defendant No. 5. Then Gopal Chandra transferred 91 decimals of land appertaining to the plot No. 202 to the plaintiff by a registered sale deed dated 20th August, 1956. After the purchase, he began to possess the land 22 cents of land of that plot was included in the National High Way. Then the defendant No. 1 (Dam) and defendant No. 2 (Jamat) filed an application under S. 44(1) of the West Bengal Estates Acquisition Act against him alleging that 25 years ago their father had been staying on 15 decimals of land appertaining to the plot No. 202 by constructing huts thereon. In that way, they managed to get their names recorded as under-raiyats regarding that plot under the plaintiff in the R.S. Khatian No. 1825/1. But the plaintiff never gave any settlement to them. Then the defendant No. 3 filed an objection under S 44(2a) of the Act against him and alleged that he purchased 65 decimals of land from defendant Nos. 1 and 2 by a registered kobala dated 9.8.1958. That objection was illegally allowed by the A.S.O. The plaintiff preferred an appeal but lost the same and thus 16 decimals of land appertaining to plot No. 202 was illegally recorded in favour of the defendant No. 3 in the R.S. khatian No. 3 in the R.S. khatian No. 1142. The suit is for declaration of title and recovery of actual possession.
2. Defendants Nos. 1 and 2 filed a written statement. Their defence is that previously they lived on plot No. 187. But they had to face difficulties. So they obtained permission of Satkari and of Gopal Chandra and erected thatched huts on the disputed land. Subsequently they sold the property to defendant No. 3.
3. Defendant No. 3 put in a written statement denying the plaintiff's allegations. He has alleged that Sonai and his two sons had no title or possession. The alleged sales by Chhoban and Chatui are fraudulent and collusive transactions. Dasu and Jamat used to live on the plot No. 202 for more than 30 yeas by raising huts thereon. Satkari Biswas was an employee of the landlord. Dasu and Jamal paid rent to him, but he did not grant any dakhila to them. They were tenants and they made a valid sale to him on the 9th August, 1958. The entries in the Records of Rights are correct Dasu and Jamat possessed that land adversely for more than 30 years and acquired title thereto by adverse possession. The other property, which measures 16 decimals of land appertaining to plot No. 202/2343, belonged to Sashi Mal. He possessed the land for more than 12 years by paying rent. Defendant No. 3 purchased that property from Sashi's heirs by a registered kobala dated 6-7-1953 and since then he is possession thereof adversely for more than 12 years.
4. The learned Munsif accepted the plaintiff's(?) version and dismissed the suit. The plaintiff preferred an appeal, which was allowed by the learned Additional Sub-Judge, Nadia. Hence this appeal by the defendant No. 3.
5. It has been contended on behalf of the appellant
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