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State of West Bengal Vs. Iswar Damodar Jew and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 743 of 1966
Judge
Reported inAIR1976Cal46
ActsWest Bengal Estates Acquisition Act, 1954 - Sections 5A, 6(1), 44, 45 and 45A
AppellantState of West Bengal
Respondentiswar Damodar Jew and ors.
Appellant AdvocateS.C. Das Gupta, Amicus Curiae;Bhabanath Dutta and ;Gouri Prasad Mukherjee, Advs.
Respondent AdvocateB.B. Giri and ;Satya Narayan Roy, Advs.
DispositionAppeal allowed
Excerpt:
- .....chandra pramanik. during his lifetime sarat chandra pramanik was the shebait of the deity. the suit properties, several plots of land mentioned in schedule to the plaint were purchased by the deity, sri sri iswar damodar jew with the money of the deity's fund created by the said sarat chandra as shebait from one satish chandra chattopadhyay by a registered deed of sale dated the 30th baisak, 1354 b.s. the said properties have always been treated as absolute debuttor properties and the usufructs of the suit lands are being used for the religious performance and sheba puja of the said deity. at first the settlement department assessed no rent for the suit lands treating them as absolute debuttor properties, but subsequently assessed rents for the suit lands behind the back of the.....
Judgment:

R. Bhattacharya, J.

1. This second appeal is by the State of West Bengal, the defendant in the original suit against the judgment and the decree of the Additional Subordinate Judge, Midnapore in the first appeal setting aside the judgment and the decree of the trial Court of the Munsif at Ghatal and decreeing the suit of the plaintiff-respondent Sri Sri Iswar Damodar Jew which was dismissed on contest by the trial Court.

2. The allegations made in the plaint may be stated in brief. The plaintiff Sri Sri Iswar Damodar Jew was the family Deity of Sarat Chandra Pramanik. During his lifetime Sarat Chandra Pramanik was the shebait of the Deity. The suit properties, several plots of land mentioned in Schedule to the plaint were purchased by the Deity, Sri Sri Iswar Damodar Jew with the money of the Deity's fund created by the said Sarat Chandra as shebait from one Satish Chandra Chattopadhyay by a registered deed of sale dated the 30th Baisak, 1354 B.S. The said properties have always been treated as absolute debuttor properties and the usufructs of the suit lands are being used for the religious performance and sheba puja of the said Deity. At first the settlement department assessed no rent for the suit lands treating them as absolute debuttor properties, but subsequently assessed rents for the suit lands behind the back of the plaintiff's shebaits Bankim Chandra Pramanik and others who are the heirs of the previous shebait Sarat Chandra Pramanik. It has been alleged in the plaint by the shebaits representing the Deity that the entries regarding the assessment of rent for the suit lands are wrong as the properties are absolute debuttor properties not assessable according to the provisions of the West Bengal Estates Acquisition Act. 1954. As the Tahsildar of the State threatened that he would realise rent, the present suit has been filed after service of notice underSection 80 of the Code of Civil Procedure praying for a declaration that the suit properties are absolute debuttor properties and that the State is not entitled to realise any rent in respect of the said properties which are exempted from assessment of rent. There is also a prayer for a permanent injunction restraining the defendant-State from realising rent relating to the suit properties and from issuing any certificate for any realisation of rent.

3. Amongst several pleas, the State represented by the Additional Collector, Midnapore has stated in the written statement that it is incorrect to state that the disputed properties were purchased by the Deity, that the same are the absolute debuttor properties and that the disputed properties are entitled to be exempted from payment of rent under the West Bengal Estates Acquisition Act. The statement that the assessment of rent waft made without the knowledge of the plaintiff has been challenged. The right, title, interest and possession of the plaintiff in the suit land have been disputed. In short, the defence case is that the properties are not debuttor and that the assessment of rent has been correctly and legally made.

4. The trial Court held that the suit properties were not acquired by the Deity with his own money and that they were not debuttor properties. According to the learned Munsif, the usufructs of the suits lands were partly used in sheba puja of the Deity and partly enjoyed by the shebaits for their personal benefit. In view of this finding, the learned Munsif held that the plaintiff could not take advantage of the exemption from payment of rent. The suit was, therefore, dismissed. Against that dismissal of the suit, an appeal was taken before the District Judge, Midnapore and the same was disposed of by the Additional Subordinate Judge in favour of the plaintiff-appellant The learned Subordinate Judge held that the correction of the finally published records of rights prepared during the revisional settlement operation by assessment of rent of the suit properties was illegal as there is no such provision for correction of records or assessment of rent after the final publication of the record of rights in the West Bengal Estates Acquisition Act It has been held that the properties being debuttor are not liable to assessment according to the provisions of West Bengal Estates Acquisition Act The present appeal has been directed against the decision of the appellate court below.

5. I have heard Mr. Dutta, the learned Advocate appearing on behalf of the appellant and Mr. Giri, the learned Advocate for the respondent I have also heard Mr. S. Dasgupta, Ex-Governmentpleader who is kind enough to act as amicus curiae and discussed the points of law involved in this appeal.

6. It has been first contended from the side of the appellant that the finding of the appellate court below that the suit properties are debuttor belonging to the Deity is without evidence and based upon illegal and unwarranted presumptions. The decision is bad for non-consideration of material and relevant evidence and misreading of the documentary evidence. Mr. Giri has challenged the contention. From the judgment of the trial court, it appears that the learned Munsif discussed all relevant evidence on record including the recitals in the kobala relating to the disputed properties as also several papers of accounts and rent receipts exhibited in this case. He discussed the evidence both oral and documentary at long length and according to him, the previous shebait Sarat Chandra Pramanik purchased the properties not treating the same belonging to the Deity, but in fact, the usufructs of the properties were used for the sheba puja of the Deity as well as for the personal benefit of the shebaits. He has not been able to accept the papers of account as quite reliable. Accordingly, the learned Munsif has held that the claim for exemption from assessment of rent in the instant case cannot be allowed. The learned Subordinate Judge is of the view that the plaintiff should not have been called upon to adduce evidence when there is the presumption in favour of the plaintiff arising out of the finally published khatian showing that the suit property was debuttor properties not assessable for rent. The presumption is more active and the plaintiff was not bound to adduce evidence in support of the presumption and even if any evidence was adduced, that should not havp been considered specially in view of the fact that no evidence had been adduced on the side of the defendant to show that the foundation of the finally published record of right, though subsequently illegally corrected, had no foundation.

7. In this case the plaintiff is Sri Sri Iswar Thakur Damodar Jew represented by eight shebaits. The specific ease in the plaint is that Sarat Chandra Pramanik, the previous shebait contributed moneys and created a fund belonging to the Deity and that with the money out of the fund of the Deity, the said Deity Sri Sri Iswar Damodar Jew Thakur purchased the suit properties as his own absolute debuttor properties. It has been further stated that the properties were being managed as such by spending the usufruct of the properties exclusively for the religious performance and sheba puia of the Deity. Next it has been alleged that in the finally published R. S.record the properties were shown as debuttor properties but subsequently for unknown reasons rent has been assessed in the recent settlement operation. An entry has been made to that effect without making any enquiry to the knowledge of the shebaits. It has been alleged that the said assessment is without jurisdiction and not binding upon the plaintiff Deity. On these substantial allegations it has been prayed for a decree to declare that the suit properties are absolute debuttor properties of the Deity and that they are exempted from assessment of rent according to the West Bengal Estates Acquisition Act. When a suit is brought by the plaintiff on certain allegations for any relief, it is for the plaintiff to prove the relevant allegations to obtain such relief. If the plaintiff wants to rely upon the presumption arising out of any finally published record of rights, he is at liberty to do it. Certainly the primary onus rests upon the defendants to rebut that presumption and if the plaintiff adduces no evidence in support of the presumption and if no evidence is forthcoming from the defendant to refute or challenge the presumption, in that case the plaintiff can claim relief on the basis of the presumption alone. But, if the plaintiff adduces evidence either oral or documentary, in support of the presumption arising out of the settlement record and if the Court disbelieves the evidence of the plaintiff and rejects the evidence as to the basis or foundation of presumption from the settlement record and if it is found that there is no foundation for the statement in the record of right, the Court, in my view, is entitled to hold that the foundation of the presumption on which the plaintiff relies is absent and that the statement in the record of right is without foundation and unacceptable. This finding may be arrived at even if the defendant does not adduce any evidence. When the evidence is adduced by the plaintiff, the Court must consider its value or genuineness, no matter whether there is any presumption in law arising out of any settlement record or not. The finding will depend on evidence and circumstances. In the present case, the plaintiff produced documentary evidence including relevant kobala, certain rent receipts and some papers of accounts. He also adduced oral evidence. On consideration of these pieces of evidence the learned Munsif held that on construction of the documents as also from other pieces of evidence, it had not been proved that the properties in question were puurchased by the Deity with his own fund. It has also been held that the usufructs of the lands were partly used for the sheba puja of the Deity and partly for the personal interest of the shebaits. The papers ofaccount have not been found to be quite genuine. The learned Subordinate Judge on the other hand did not consider the material oral evidence. He did not pay his proper attention to the papers of accounts submitted by the plaintiff in this case and exhibited. It appears further that he did not properly and correctly read the kobala and the settlement record, practically speaking his view appears to be that as there is no evidence on the side of the defendant to challenge the presumption arising out of the settlement record regarding the debuttor character of the properties, the plaintiff should not have been called upon to adduce evidence and therefore he means to say that other evidence should not have been considered. In this connexion bearing in mind the specific case of the plaintiff, the kobala (Ext. 7) is to be looked into. Here Sarat Chandra Pramanik, the shebait of Sri Sri Damodar Thakur Jew has been shown as the purchaser. Except the description of the purchaser as shebait of the Deity, there is no indication anywhere in any part of the recital of the document that the Deity was in fact the purchaser or that any part of the money belonging to the Deity was received by the seller as consideration. There is no indication even that the property was in any way connected with the sheba puja or any religious ceremony of the Deity. On perusal of the contents of the document, it is found that the recitals are addressed personally to Sarat Chandra Pramanik and not to the Deity. The property will be inherited by Sarat's heirs. The evidence further shows that after purchase Sarat Chandra paid rent to the landlord, but the name of the Deity was not recorded in the Sherista of the landlord. In the settlement records (Exts. A and A-1) the name of Sarat Chandra Pramanik, the shebait of Sri Sri Damodar Thakur Jew has been stated to be in possession as a tenant. It is significant to note that Sri Sri Damodar Thakur Jew has not been described as the tenant in possession.

8. Another relevant document exhibited in this case is Ext. B, the certified copy of the judgment of debuttor proceedings dated 31-5-1957 relating to the khatians connected with the suit properties. The order passed is dated 4-6-1957. The order sheet shows that Bankim Chandra Pramanik, one of the shebaits representing the Deity in the present suit appeared before the Revenue Officer in the proceeding on behalf of his father Sarat Chandra Pramanik, the shebait of Sri Sri Iswar Damodar Thakur Jew. None appeared on behalf of the State. The matter was heard ex parte. On consideration of the materials, the Officer held that it was a case where the properties were purchased using the name of the Deity andnot a case of dedication in favour of the Deity. It was held that it was not a case of 'true or absolute debuttor properties' and in this view of the finding it was held that exemption from assessment of rent would not apply. From this document it is clear that in the proceedings before the Revenue Officer for assessment of rent, the shebait was given an opportunity to be heard and in fact Bankim Chandra Pramanik, one of the shebaits in the present suit was present on behalf of his father, the previous shebait. The story that the enquiry was made in the proceeding for assessment of rent without the knowledge of the shebait is clearly untenable. This has not been denied in this case at the time of hearing. On consideration of the material exhibits already referred to. I should hold that the learned Subordinate Judge not only failed to consider the relevant documentary evidence, but also misread the kobala and the settlement records (Exts. A and A-1) as also the certified copy of the debuttor proceedings. Due to the failure of necessary consideration and for misreading the documentary evidence, the finding of the learned Addl. Subordinate Judge that the suit properties are debuttors are not correct and the same is liable to be set aside being without evidence and on the basis of illegal and irrelevant assumptions, I should hold that the suit properties are not debuttor and that they do not belong to the Deity as alleged in the plaint.

9. The next question of law which arises for consideration is whether the corrections made by the Revenue Officer in the settlement records by assessment of rent in respect of the disputed lands are legal and according to the provision of the West Bengal Estates Acquisition Act. Assuming that the disputed lands are debuttor lands belonging to the Deity, a pertinent question arises whether the lands belonging to him can be exempted from assessment of rent according to the West Bengal Estates Acquisition Act. In this connexion let us first of all look to Section 6 of the said Act. It speaks about the right of intermediary to retain certain lands. There is no dispute in the present case that the shebait of the Deity has retained the land under Section 6. Sub-section (2) of Section 6 of the Act as quoted below will be relevant.

'(2) An intermediary who is entitled to retain possession of any land under Sub-section (1) shall be deemed to hold such land directly under the State from the date of vesting as a tenant, subject to such terms and conditions as may be prescribed and subject to payment of such rent as may be determined under the provisions of this Act and as entered in the record of rights finally published under Chapter V except that no rent shallbe payable for land referred to in Clause (h) or (i):--

Provided that ......'

For the purpose of deciding whether in the present case the plaintiff can claim exemptions from assessment of rent for the suit lands, we are to consider Clause (i) of Sub-section (1) of Section 6 of the Act. The said clause reads as follows:--

'(i) Where the intermediary is a Corporation or an institution established exclusively for a religious or a charitable purpose or tooth, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both--land held in khas by such Corporation or institution, or person for such purpose including land held by any person not being a tenant, by leave or licence of such Corporation or institution or person.'

10. When the Deity has started the present action for a declaration that the suit properties being debuttor and belonging to Him cannot be assessed for rent but should be exempted from assessment of rent according to the provisions of the West Bengal Estates Acquisition Act, the plaintiff is to prove how he can claim exemption. It is admitted by the learned lawyers appearing before me on both the sides that Clause (i) of Sub-section (1) of Section 6 of the Act is applicable to see whether the suit lands are assessable. The question, therefore, is 'Can the Deity claim exemptions from assessment of rent simply because the properties in question belong to Him' Mr. Giri, the learned Advocate for the respondent has admitted quite frankly and there can be no doubt that the Deity, if an intermediary, cannot be a Corporation, it is also admitted by Mr. Giri that the plaintiff-Deity is not institution established exclusively for a religious or a charitable purpose or both. It is not a case of a person holding under a trust or endowment exclusively for a purpose which is charitable or religious or both. It is not the case of the plaint that it is a case of trust or endowment. Mr, Giri also does not rely upon this part of clause (i). Mr. Giri's contention is that the Deity is a person holding the disputed lands under a legal obligation exclusively for a purpose which is charitable or religious or both and on this part of Clause (i) according to Mr. Giri, the plaintiff-Deity can claim exemption from assessment of rent. Both Mr. Dasgupta and Mr. Dutta opposed the contention of Mr. Giri. First of all the plaint case is that the Deity has purchased the suit lands with his own fund and therefore, he is the proprietor of the properties. The Deity has acquired the property as absolute owner by virtue of purchase without any condition, duty or any obligation. The suit lands are the absolute properties of the Deity and as such the Deity possesses the lands. 'Obligation means a binding duty as per agreement or contract implied or express. The word according to Osborn's the Concise Law Dictionary, 4th Edn. means 'a duty; the bond of legal necessity which binds together two or more determinate individuals. It is limited to legal duties arising out of special personal relationship existing, whether by reason of a contract or a tort, or otherwise, between two or more individual persons'. The word 'obligation', implies not a moral duty but a legal duty which can be enforced by law and which is imposed upon a person by an outside agency or a third party in respect of the subject-matter. The word used in Clause (i) of Sub-section (1) of Section 6 of the Estates Acquisition Act does not mean a simple moral duty based upon ethical conception. It is quite clear from the reading of the said clause that the exemption from assessment of rent in respect of a land will be available in a case where a person holding the land in question in khas is under legal obligation and not moral as it has been clearly stated for a purpose which must be either charitable or religious or both. There can be no doubt that the person referred to in that clause must be a person who must be under such legal obligation while holding the land in khas. This clause has got to be read with reference to the pleading in the present case to gee whether that is applicable here. The simple case of the Deity is that He has purchased the land with his own money and has been in possession of the land as absolute debuttor properties and therefore, being the owner of the land the Deity is entitled to get exemption from assessment of rent. It is not the case of the plaintiff that he is a person holding under a trust or endowment or any other legal obligation exclusively for a purpose which is charitable or religious or both. Simple ownership of the land being vested in the Deity by virtue of purchase without any legal obligation for Has holding such land for the purpose as mentioned will not be the ground for exemption from assessment of rent. In this view of the matter the benefit of Clause (i) of Sub-section (1) of Section 6 read with Sub-section (2) cannot be availed of by the plaintiff,

11. Lastly, it has got to be considered whether the debuttor proceedings started by the Revenue Officer for assessment of the suit lands were illegal in the absence of any provision in the West Bengal Estates Acquisition Act and whether the assessment in that enquiry proceedings was illegal. Section 42 of the Estates Acquisition Act gives authority to the Revenue Officer for determination of therent according to the principles mentioned therein. Section 42-A of the Act inserted by the West Bengal Act XIX of 1961 with retrospective effect says that if for any reason the rent payable in respect of any land retained by any intermediary has not been determined before the draft or final publication pf the record of rights, then notwithstanding anything contained elsewhere in the Act the Revenue Officer may, at any time, after giving notice to the person concerned determine the rent in accordance with Sections 40. 41 and 42 and enter the rent so determined in the record of rights. Of course there is a provision for appeal against this order and the decision of the appellate authority would be final and the Revenue Officer shall, if necessary correct in accordance with such decision. The entry relating to the rent made by him in the record of rights under Section 44 of the Act relates to the draft and final publication of the record of rights. Sub-section (2a) of Section 44 clearly says that an Officer specially empowered by the State Government may on application within nine months or of his own motion within 21 years from the date of final publication of the record of rights or from the date of coming into force of the West Bengal Estates Acquisition (2nd Amendment) Ordinance, 1957 whichever is later, revise an entry in the record finally published in accordance with the provisions of Sub-section (2) after giving the persons interested an opportunity of being heard and after recording reasons therefor. There are provisos but we are not concerned with them. This Sub-section (2a) of Section 44 gives scope for revision of the record of rights finally published upon an application by a person aggrieved or in a proceeding started by the Officer concerned suo motu. In this connexion Sections 45 and 45-A of the Act should be considered. Section 45 is a provision which gives authority to a Revenue Officer specially empowered by the State Government for correction of the finally published record of rights relating to bona fide mistakes. Section 45-A gives authority to a Revenue Officer specially empowered by the State Government to correct an entry in the record of rights if it is necessary to do so in pursuance of an order under Section 5-A or on account of any amendment made in the provisions of the Act or the rules made thereunder.

12. Lastly we have the provision in Sub-section (4) of Section 44 which runs as follows:--

'Every entry in the record of rights finally published under Sub-section (2) including an entry revised under Sub-section (2a) made under Section 42-A or corrected under Section 45 or Section 45-A shall, subject to any modification by an order on appeal under Sub-section (3),be presumed to be correct until it is proved by evidence to be incorrect.' Ext. B is the order of the Revenue Officer passed in the debuttor proceedings in case No. 5 dated 31-5-1957. The order was passed on 4-6-1957. It was a suo motu proceeding. Notices were given to the parties concerned. Bankim Chandra Pramanik, one of the shebaits in the present case appeared. But none appealed on behalf of the State of West Bengal. It was held by the Revenue Officer concerned that the suit properties were not absolute deduttor properties and the lands were found to be assessable under Section 42 of the Estates Acquisition Act. It was held that no exemption under Sub-section (2) of Section 6 of the Act would be allowed and ultimately, admittedly, the rents were fixed. There is no such evidence to prove that the Officer who held the proceedings or assessed the rent was not duly authorised by the Stale Govt. in that behalf. Such authority has not been challenged. In view of the provisions of the Act just mentioned hereinbefore, I should hold that the assessment of rent and the debuttor proceeding referred to in Ext. B are quite legal and that the Revenue Officer duly empowered by the State Government can legally assess rent in respect of the lands which are recorded as non-assessable in the finally published record of rights and may also correct the finally published records accordingly. After due corrections according to law, the presumption of correctness of the corrected records of rights shall be there until it is proved by evidence to be incorrect. The view of the learned Subordinate Judge below that there was no provision for correction of the record of rights and assessment of rent after the final publication of record cannot be held to be correct and he was wrong in holding that there was presumption of correctness in the finally published records of rights. The corrected records of rights, however, had presumption of correctness.

13. No other point has been raised before me and I find that the judgment of the learned first appellate court is erroneous due to perverse finding of fact arrived at on account of non-consideration of material evidence and misreading of the evidence already on record and also for misconstruction of provision of law. The said judgment and the decree passed thereon are liable to be set aside.

14. In the result the appeal succeeds and the judgment and the decree of the learned Subordinate Judge are hereby set aside. The plaintiff having failed to prove the plaint case, the suit has been rightly dismissed by the trial court. The trial Court's decision is hereby upheld. I, however, pass no order as to costs in this appeal.

15. Before I leave this matter. I must express my gratitude for the assistance rendered ,by the learned lawyers of both the sides and particularly I am thankful to Mr. Dasgupta for acting as amicus curiae.


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