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Smt. Shima Sundari Lekri Vs. Paltu Hemram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1747 of 1980
Judge
Reported inAIR1982Cal5,85CWN1139
ActsWest Bengal Land Reforms Act, 1956 - Section 53A; ;Code of Civil Procedure (CPC) , 1908 - Section 80 - Order 23, Rule 1
AppellantSmt. Shima Sundari Lekri
RespondentPaltu Hemram and ors.
Advocates:Himadri Sankar Mazumder, Adv.
DispositionApplication allowed
Excerpt:
- .....of title and injunction.3. at the time of settlement operation prepared under the w. b. land reforms act the name of the petitioner was duly recorded and at that time the lands were in her own cultivation. the defendants at the instigation of others claimed the right of bargadar and in fact, while opposing the application under order 39. rule 1, c. p. c. they claimed to be the bargadars. it was also pointed out that opposite party no. 1 belonged to a scheduled tribe.4. section 53a of the w. b. land reforms act provides that the revenue officer will be a necessary party in a suit in which one of the parties is a member of any scheduled tribe. in this view of the matter, on the date of hearing of the application for injunction the petitioner filed an application for withdrawing.....
Judgment:
ORDER

Sushindra Mohan Guha, J.

1. This application for revision is directed against the order dated 5th of March, 1980 passed by the learned Munsif, Garbeta, District Midnapore, in Title Suit No. 135 of 1979 refusing to permit the plaintiff-petitioner to withdraw from the suit

2. The Title Suit No. 135 of 1979 was instituted by the petitioner as plaintiff against the opposite parties for declaration of title and injunction.

3. At the time of settlement operation prepared under the W. B. Land Reforms Act the name of the petitioner was duly recorded and at that time the lands were in her own cultivation. The defendants at the instigation of others claimed the right of bargadar and in fact, while opposing the application under Order 39. Rule 1, C. P. C. they claimed to be the bargadars. It was also pointed out that Opposite Party No. 1 belonged to a Scheduled Tribe.

4. Section 53A of the W. B. Land Reforms Act provides that the Revenue Officer will be a necessary party in a suit in which one of the parties is a member of any Scheduled Tribe. In this view of the matter, on the date of hearing of the application for injunction the petitioner filed an application for withdrawing the suit with liberty to sue afresh, on the ground that no notice under Section 80 of the Civil P. C. had been served upon the Junior Land Reforms Officer in compliance with the provision of Section 53A of the W. B. Land Reforms Act, before instituting the suit.

5. The learned Munsif on interpretation of provision of Section 80, C. P. Code read with Sec. 53A of the W. B. Land Reforms Act rejected the said application for withdrawing from the suit.

6. Mr. H. S. Mazumder, the learned Advocate for the petitioner contends that the learned Munsif acted illegally and without jurisdiction in not allowing the application for withdrawal of the suit.

7. There is no doubt that in the suit against a member of the Scheduled Tribe it was incumbent on the plaintiff to make the Revenue Officer as a party under Section 53A of the W. B. Land Reforms Act.

8. Section 53A of the W. B. Land Reforms Act is of course, conspicuously silent as to necessity or otherwise of any notice under Section 80. C. P. Code on the Revenue Officer concerned. This section does not lay down merely that such a proceeding is only to be decided in the presence of the Revenue Officer. On the contrary it lays down that the Revenue Officer shall be a necessary party to all suits of a civil nature in which one of the parties is any member of any Scheduled Tribe. Section 80, C. P. C. relates firstly to suits against Government and secondly to suits against Public Officers. The words 'acts purporting to be done' qualify the public Officers. A notice under Section 80, C. P. Code is mandatory against Public Officers, when the suit is in respect of an act purporting to be done by him in official capacity. A Revenue Officer If impleaded in such a proceeding must be done so in his official capacity. If that he the position a notice under Section 80, C. P. Code seems to be mandatory. The petitioner as plaintiff had every reason to think that non-service of notice under Section 80, C. P. C. would be rather fatal. In this view of the matter, the petitioner wanted to withdraw from the suit on the ground of formal defect. On construing Section 53A of the W. B. Land Reforms Act it is observed by the learned Munsif that the provision in Section 53A, C P. Code (or W. B. Land Reforms Act?) has been made to safeguard the interest of the Scheduled Tribe, so that due to their ignorance their interest may not be affected and that is why the Revenue Officer has been made a necessary party. Then he opined that as the Revenue Officer is a necessary party he cannot be taken to be a party requiring a notice under Section 80, C. P. Code. I cannot be in agreement with the learned Munsif on this point. It has already been pointed out that the Revenue Officer is to be impleaded as a party not in his private capacity but as a Public Officer. If that be so, it will be incumbent upon the petitioner to serve a notice under Section 80, C. P. Code before impleading such a Public Officer in a suit of this nature. Non-joinder of the Revenue Officer as a party to the suit can be taken to be a formal defect. In this view of the matter, the learned Munsif should have allowed the application for withdrawal of the suit.

9. In the result, this application succeeds. The Rule is made absolute. The impugned order is set aside. There will be no order as to costs. The learned Munsif is directed to permit the plaintiff petitioner to withdraw from the suit with liberty to sue afresh on the same cause of action if not otherwise barred, subject to payment of such costs as he thinks proper and just.

10. Let the records be sent down at once.


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