1. This writ petition has been filed assailing the judgment and order dated 30 th July, 2008 passed by the West Bengal Land Reforms & Tenancy Tribunal in the case being O.A. No. 2 of 2006 whereby and whereunder the said learned Tribunal finally disposed of the application filed by the petitioner herein on merits.
2. The facts available from the records are briefly summarised hereinafter.
3. The entire land in question of Mouza: Paschim Tajpur J.L. No. 13, Mouza: Banamalipur, J.L. No. 15 and Mouza: Aushbali, J.L. No. 9 under P.S. Chanditala in the district of Hooghly were recorded during R.S. operation in the names of Debata Charan Chattopadhyay and Hari Charan Chattopadhyay, sons of Late Purna Charan Chattopadhyay in equal 8 annas share each. Said Hari Charan Chattopadhyay out of his 8 annas share transferred more or less 10.11 acres of land to his elder son Parimal Kanti Chattopadhyay, respondent No. 6 herein and also transferred 10.32 acres of land to his younger son namely, the petitioner herein by way of registered deed dated 14 th February, 1958. Said Hari Charan Chattopadhyay retained more or less 5.81 acres of land.
4. The other son of Late Purna Charan Chattopadhyay namely, Debata Charan Chattopadhyay died intestate on 14.09.1959 leaving behind his only other brother Hari Charan Chattopadhyay as his only legal heir and legal representative in respect of his property. Thus, said Hari Charan Chattopadhyay after transferring earlier more or less (10.11 + 10.32) i.e. 20.43 acres of land to his aforesaid two sons as stated hereinbefore, became the absolute owner and possessor of total land measuring about (5.81 + 25.95) i.e. 31.76 acres of land spread over in the aforesaid three Mouzas.
5. Said Hari Charan Chattopadhyay thereafter, executed a registered will in the year 1961 dated 22 ndMay, 1961 appointing his two sons as the executors. The aforesaid will has, however, not yet been probated.
6. It also appears from the records that the notice under Section 10(2) of the W.B.E.A. Act was served on Hari Charan Chattopadhyay on 29 th July, 1966 directing him to hand over possession of the excess land.
7. Being aggrieved by the said notice a writ petition was filed by the said Hari Charan Chattopadhyay before this court being C.R. No. 2652 (W) of 1966. During the pendency of the aforesaid writ petition, Hari Charan Chattopadhyay died in the year 1967 leaving behind his widow, two sons namely, the petitioner and the respondent No. 6 herein and also two daughters as the legal heirs who inherited the property in intestesi. The aforesaid legal heirs accordingly, inherited one-fifth share each in respect of the property owned by Hari Charan Chattopadhyay under the Hindu Succession Act, 1956.
8. In view of the death of Hari Charan Chattopadhyay, his legal heirs and successors were substituted in the aforesaid writ petition. The aforesaid writ petition was ultimately disposed of by this court on 21 st January, 1971 declaring the aforesaid notice under Section 10(2) of the W.B.E.A.
9. Act served on Hari Charan Chattopadhyay as invalid and without jurisdiction. Therefore, all the five successors of Hari Charan Chattopadhyay were recognised by this court as legal heirs and they became the actual Raiyats on the date of vesting. The names of the aforesaid five successors of Hari Charan Chattopadhyay were recorded during L.R. Survey in the aforesaid three Mouzas in three different ways. Names of the aforesaid five successors of Hari Charan Chattopadhyay have been recorded correctly in respect of the lands of Mouza: Banamalipur but in respect of the lands of Mouza: Paschim Tajpur, names of only two successors out of total five successors namely, Parimal Kanti Chattopadhyay and Golap Kanti Chattopadhyay have been erroneously recorded. In respect of the lands of Mouza: Aushbali, names of Debata Charan Chattopadhyay and Hari Charan Chattopadhyay have been erroneously recorded.
10. After the death of Hari Charan Chattopadhyay all his aforesaid five successors should have been recorded as Raiyats in all the three Mouzas with equal shares each which unfortunately, have not been done in case of Mouza: Paschim Tajpur and Mouza: Aushbali.
11. The concerned authority initiated vesting cases being Nos. 31/SBR/CHT/1978 and 32/SBR/CHT/1978 under Section 14T(3) against Golap Kanti Chattopadhyay and Parimal Kanti Chattopadhyay respectively for determination of ceiling as on 15.02.1971. However, both the proceedings were dropped by the judgment and order dated 2 nd February, 1979 upon holding that the said Golap Kanti Chattopadhyay and Parimal Kanti Chattopadhyay had no lands beyond the prescribed ceiling limit as on 15.02.1971. Afterwards, the concerned Revenue Officer decided to review the aforesaid vesting case of the year 1978 on the ground that some of the subject lands get irrigation facility and therefore, initiated review proceedings which were challenged before this court by the writ petition being C.R. No. 12570 (W) of 1985. The aforesaid writ petition was subsequently transferred to the Tribunal as T.A. No. 561 of 2002 and the same was disposed of by the Tribunal by directing the B.L&L.R.O.;, Chanditala-I to proceed with the review proceedings in accordance with law.
12. It is submitted that during the pendency of the aforesaid review proceedings the B.L&L.R.O.;, Chanditala- I initiated a fresh vesting proceeding being 8/14T(3)/CHT/2002 and violated the principle of res judicata. The petitioner herein, however, filed an objection on 23 rd August, 2002 requesting the said B.L&L.R.O.;, Chanditala-I to drop the new case upon taking note of the fact that the matter has already been settled in the Big Raiyat Case of 2.2.1979. The B.L&L.R.O.; concerned, however, disposed of the aforesaid proceeding being Case No. 8/14T(3)/2002 ex-parte on 1 st June, 2004 upon observing that the petitioner herein produced two registered deeds dated 14.02.1958 and 21.05.1961 respectively at the K.B. stage and on the basis whereof the records of rights were prepared as regards subject land of Mouza: Paschim Tajpur.
13. Mr. Sakti Nath Mukherjee, learned Senior Counsel representing the petitioner submitted that the aforesaid deed dated 21 st May, 1961 is an unprobated will and the same could not be taken into consideration by the B.L&L.R.O.; concerned. Mr. Mukherjee further submitted that the aforesaid unprobated will dated 21 st May, 1961 covers the subject land of all the three Mouzas and not only in respect of Mouza: Paschim Tajpur. Therefore, according to the learned Senior Counsel of the petitioner, if the lands in resepct of Mouza: Banamalipur can be recorded correctly then there cannot be any valid reason to take a different stand while recording the lands in respect of Mouza:
14. Paschim Tajpur. The learned Counsel representing the State- respondents admitted that the will dated 21 st May, 1961 has not yet been probated. In the aforesaid circumstances, on the basis of the aforesaid unprobated will, the petitioner herein cannot own any land which was earlier held by the deceased Hari Charan Chattopadhyay.
15. Since Hari Charan Chattopadhyay died intestate leaving behind five successors, the property of deceased Hari Charan Chattopadhyay would devolve upon the aforesaid five successors and the said five successors must inherit 1/5 th share each under the Hindu Succession Act, 1956.
16. The petitioner herein is entitled to only 1/5 th share of the property of Late Hari Charan Chattopadhyay, who died intestate and the said petitioner is not entitled to claim any property of Late Hari Charan Chattopadhyay on the basis of the aforesaid unprobated will.
17. The petitioner herein cannot get any property of deceased Hari Charan Chattopadhyay on the strength of any unprobated will which should have been appreciated by the B.L.&L.R.O.;, D.L.&L.R.O.; as well as the learned Tribunal. The petitioner herein produced the aforesaid unprobated will dated 21 st May, 1961 before the B.L. & L.R.O. concerned. The said B.L.&L.R.O.;, therefore, had specific knowledge in respect of the unprobated will. Accordingly, the B.L.&L.R.O.; had no occasion to act on the basis of the aforesaid unprobated will while determining the ceiling limit of the petitioner.
18. The B.L.&L.R.O.; concerned upon taking note of the aforesaid unprobated will has illegally and wrongfully arrived at the conclusion that the petitioner herein held land beyond the prescribed ceiling limit as on 15.02.1971. The B.L&L.R.O.;, Chanditala-I should not have relied on the unprobated will while determining the ceiling limit of the petitioner herein.
19. Most unfortunately, the appellate authority under Section 54 of the W.B.L.R. Act namely, the D.L.&L.R.O.;, Hoogly while deciding the appeal being Case No. 37 of 2004 did not appreciate the illegalities committed by the B.L.&L.R.O.; in determining the actual land held by the petitioner herein and illegally dismissed the appeal upon affirming the order passed by the B.L.&L.R.O.;, Chanditala-I in the proceeding being no. 8/14T(3) of 2002.
20. The learned Tribunal also failed to take note of the aforesaid errors and/or illegalities committed by the B.L.&L.R.O.; concerned while deciding the vesting case being No. 8/14T(3) dated 1 st June 2004, which was subsequently affirmed by the appellate authority in appeal Case No. 37 of 2004. The learned Tribunal should have appreciated that the B.L.&L.R.O.; concerned committed a serious error by placing reliance on the unprobated will while determining the land actually held by the petitioner.
21. For the aforementioned reasons, the order passed by the B.L.&L.R.O.; concerned in vesting case No. 8/14T(3) dated 1 st June 2004 and the subsequent order passed by the appellate authority in appeal Case No. 37 of 2004 affirming the aforesaid order of the B.L.&L.R.O.; cannot be sustained in the eye of law and the same are therefore, quashed.
22. For the identical reasons, the impugned judgment and order dated 30.07.2008 passed by the learned Tribunal also cannot be sustained and the same is accordingly set aside. This writ petition, therefore, stands allowed.
23. In the facts of the present case, there will be no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.