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1979 Supreme(Cal) 241
IN THE HIGH COURT AT CALCUTTA
Dipak Kumar Sen, J.
Raijuddin Momin – Petitioner
Versus
Junior Land Reforms Officer, Sutian & other – Respondents
Civil Rule No. 15558 (W) of 1975
Decided On: July 5, 1979
Mr. Mihir Kumar Roy for Petitioner.
Mr. K.N. Laha for Respondents
The conversion of the land into a garden before vesting and the absence of evidence of the petitioner holding land beyond the permitted ceiling influenced the court's decision in favor of the petitioner.
Headnote:
Land Dispute - Ownership of Land - The petitioner claimed ownership of a 38-acre land, which was recorded in two different Khatians. The dispute arose when the Junior Land Reforms Officer threatened to take possession of 19 acres of the land based on erroneous recording. The court found that the land had been converted into a garden before vesting and ruled in favor of the petitioner, issuing a writ of Mandamus and certiorari to prevent possession and distribution of the land.
Fact of the Case:
The petitioner claimed ownership of a 38-acre land, which was recorded in two different Khatians. The Junior Land Reforms Officer threatened to take possession of 19 acres of the land based on erroneous recording.
Finding of the Court:
The court found that the land had been converted into a garden before vesting and ruled in favor of the petitioner, issuing a writ of Mandamus and certiorari to prevent possession and distribution of the land.
Issues: Ownership dispute over 38-acre land, threat of possession by Junior Land Reforms Officer based on erroneous recording.
Ratio Decidendi: The court ruled in favor of the petitioner based on the conversion of the land into a garden before vesting, and the absence of evidence that the petitioner was not in possession of the land or held land beyond the permitted ceiling.
Final Decision: The court issued a writ of Mandamus and certiorari, preventing the respondents from taking possession of the 19-acre land and canceling the order of vesting.
Dipak Kumar Sen, J.
1. The subject matter of the dispute in the present proceedings is 38 acres of land under plot no. 604 in Mouza Purapara, P.S. Suti, District Murshidabad. Raijuddin Momin the petitioner in these proceedings, states that he is the owner of the said land which was purchased by him sometime in 1938 from one Riat Ali with money obtained from his father. Subsequent thereto the said land was converted into a mango garden and the same is still a garden. At all material times the said land had been in the possession of the petitioner's father and after the latter's death in the possession of the heirs of the deceased including the petitioner. By a registered Deed of Partition dated the 17.10.1952 the said land was allotted in the share of the petitioner, who bas since been in continuous and exclusive possession thereof.
2. Subsequently in Khatian No. 3638 of Mouza Paschim Purapara 19 acres of the said plot has been recorded. The balance 19 acres has been recorded in Khatian No. 597 of Mouza Purapara. In the said Khatians the petitioner's name has been recorded and his title noted but in Khatian No. 597 it is recorded that the same will remain in force till 31st Chaitra 1361 B.S. Further, in the same Khatian No. 597 the said 19 acres has been recorded 'Aus' land.
3. The petitioner contends that he is a small cultivator and does not possess land beyond the ceiling No 'Big Raiyat' case had been started against him nor any notice under section 10(2) of the West Bengal Estates Acquisition Act, 1953 was served on him. It is alleged that on the strength of the erroneous recording of the said land as 'Aus' land, the Junior Land Reforms Officer and his subordinates have threatened to take possession of the said 19 acres of land under Khatian No. 597 and to distribute the same. The petitioner contends that the said land being garden or orchard cannot vest in the State and, even otherwise, the petitioner is entitled to retain the said land in law.
4. This application is opposed on behalf of the respondents. An affidavit of one Ajit Kumar Sardar, the Junior Land Reforms Officer, Suti affirmed on the 7.10.1977 has been filed in opposition to the petition. It is stated in the said affidavit that the said 19 acres of land under Khatian 597 has vested in the State as the predecessor-in-interest of the petitioner Riat Ali who was a 'Big Raiyat' did not opt to retain the same. It is further stated that on enquiry the said 19 acres of land have been found to have been converted into a garden before vesting. It is stated that the petitioner had been allowed to retain his possession of the other 19 acres of land in the said plot under Khanda Khatian No. 3638.
5. It appears from the records that in respect of both the portions of the said plot no. 604 recorded respectively under Khatians No. 597 and No. 3638 there is mention of Khanda Khatians in favour of the petitioner. It is admitted that the 19 acres had been converted into a garden prior to vesting.
6. It is not understood as to how in respect of Khatian No. 597 a Khanda Khatian in favour of the petitioner has been recognized while in respect of the balance of the said plot under Khatian No. 3638 the petitioner's right by purchase though noted has been totally ignored.
7. There is no allegation that the petitioner is not in possession of the said land or that the petitioner has land beyond the ceiling which he is not permitted to hold.
8. For the reasons above the petitioner succeeds in this application. The rule issued on the 2.9.1975, is made absolute to the extent as stated hereafter. A writ in the nature of Mandamus will issue directing the respondents not to take possession of the said 19 acre of land under Khatian No. 3638 and not to distribute the same in favour of other persons. A writ in the nature of certiorari will issue canceling the order of vesting of the said 19 acre of land. The rule is disposed of accordingly.
There will be no order as to costs.
