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2018 Supreme(Cal) 837
IN THE HIGH COURT OF CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Anal Chatterjee and Others - Appellant
Vs.
Bally Investment Trust Limited and Others - Respondent
Civil Order No. 3040 of 2018
Decided on : 22-11-2018
Advocate Appeared:
Haradhan Banerjee, Adv., Amitava Pain, Adv., Subhrangshu Datta, Adv., Nilmoni Das, Adv., Monidipa (Paul) Roy, Adv., Partha Pratim Mukhopadhyay, Adv., Saptangshu Basu, Adv., Surojit Vashist, Adv., Mahendra Prasad Gupta, Adv., Rameshwar Sinha, Adv.
The main legal point established in the judgment is that the petitioners must satisfy the necessary criteria for automatic vesting of non-agricultural land under the Acts to make out a prima facie case for the grant of injunction.
Headnote:
Injunction - Immovable Property - West Bengal Land Reforms Act, 1955, West Bengal Estates Acquisition Act, 1953, Transfer of Property Act - Sections 107, 106, 2, 6 - The court discussed the unilateral execution of a kabuliyat, the definition of 'intermediary', and the criteria for automatic retention of non-agricultural land under the Acts. The court found that the petitioners did not satisfy the necessary criteria for automatic vesting, and thus, could not make out a prima facie case for the grant of injunction.
Fact of the Case:
The suit involved a dispute over an immovable property, with the plaintiffs seeking an injunction to restrain the opposite party from raising any construction on the property or changing its nature and character.
Finding of the Court:
The court found that the petitioners did not satisfy the necessary criteria for automatic vesting of the non-agricultural land under the Acts, and thus, could not make out a prima facie case for the grant of injunction.
Issues: The key issues involved the unilateral execution of a kabuliyat, the definition of 'intermediary', and the criteria for automatic retention of non-agricultural land under the Acts.
Ratio Decidendi: The court held that the petitioners did not satisfy the necessary criteria for automatic vesting of the non-agricultural land under the Acts, and thus, could not make out a prima facie case for the grant of injunction.
Final Decision: The revisional application was dismissed, affirming the impugned orders, without any order as to costs. The findings and observations made by the Court and the Courts below were tentative for the purpose of the suit and were rendered in the context of the injunction application only.
SABYASACHI BHATTACHARYYA, J.
1. The present revisional application arises from a suit for declaration, permanent and mandatory injunctions filed in connection with an immovable property. The property, at present, is comprised of a land as well as structures. The plaintiffs in the said suit have challenged an order of affirmance, whereby both the Courts below dismissed an application for injunction filed by the petitioners, seeking an order of restraint on the opposite party no. 1, Bally Investment Trust Limited and/or its men, agents, servants and followers from raising any construction on the suit property and/or encumbering the suit properties in any manner whatsoever and/or from changing the nature and character of the suit property, as well as opposite party no. 2, Howrah Municipal Corporation, from giving effect to the plan, if sanctioned in respect of the suit property.
2. Upon contested hearing, both the Courts below refused such injunction.
3. It appears from the contentions of the parties that one Khodan Bala Debi was the original owner of the suit property. One Kalipada unilaterally executed and registered a Kabuliyat, whereby Khodan Bala was supposed to give on annual lease the suit (which was a bastu land at that juncture) in favour of Kalipada on July 25, 1933.
4. Khodan Bala subsequently transferred the suit property to her three sons by registered deed of sale. The present plaintiffs/petitioners are successors-in-interest of such sons.
5. On the other hand, Kalipada transferred the suit property to one Jashoda on December 17, 1945 who, in turn, transferred the same in the year 1955 to the opposite party no. 1, Bally Investment Trust Limited. Bally Investment thereafter transferred the property to one Raj Kumar and ultimately the suit property was transferred to the defendants/opposite party nos. 3 and 4. Apparently opposite party no. 1 also transferred an interest in the property to the opposite party no. 5.
6. It is argued on behalf of the petitioners that the original kabuliyat dated July 25, 1933 was a unilateral document, singed only by Kalipada, the lessee, and not by Khodan Bala, the lessor. Moreover, no corresponding patta was executed in favour of Kalipada by Khodan Bala.
7. Placing reliance on a judgment [Ram Kumar Das vs. Jagdish Chandra Deo reported at, Dhabal Deb and another, AIR (1952) SC 23] as well as the provisions of Section 107 of the Transfer of Property Act, learned Senior Advocate for the petitioners argues that no lease from year and year was created by virtue of such document but only, at best, a monthly tenancy was created.
8. The subsequent transfers by the lessee and his successors-in-interest could not create any title in the suit property and as such those only amounted to illegal sub-letting. However, since subsequently the successors-in-interest accepted rent from the transferee-subtenants, the monthly tenancy was, in effect, perpetuated. Thereafter such tenancy was terminated by the plaintiffs but despite such termination, the opposite parties, in particular opposite party no. 1, has allegedly been constructing illegally on the suit premises.
9. Learned Senior Advocate for the petitioners further argues that the interest of Khodan Bala, which ultimately vested in the plaintiffs/petitioners as owners of the suit property, was retained and was not vested in the State as per the provisions of the West Bengal Estates Acquisition Act, 1953. It is argued that, as per Section 2(1) of the said Act of 1953, the term ‘proprietor’ comes within the definition of ‘intermediary’. Taking into consideration the language of Section 6(1)(a), the homestead land comprised in the suit property (since subsequently structures had come up thereon) was automatically retained by the plaintiffs.
10. In this context, learned Senior Advocate relies on a judgment [State of West Bengal and others vs. Ratnagiri Engineering Private Limited and others reported at, (2009) 4 SCC 453] which, according to the learned S
