- (1.) Heard the learned Advocates appearing for the parties. Assailing the order dated 17th December, 2008 passed by West Bengal Land Reforms and Tenancy Tribunal, in O.A. No. 3725 of 2005 (LRTT), this writ application under Article 226 of the Constitution of India has been filed.
(2.) The impugned order reads such: The instant O.A. No. 3527 of 2005 is directed against order date 29.06.05 passed by the ADM and DL & LRO at Alipore Dist. 24 Parganas (South) in LR. Appeal No. 71 of 2001 affirming the order date 21.07.08 passed by the Revenue Officer, Sagar in Bhag Chas case No. 126 of 1998 under section 21Dread with section 17 of the WBLR Act adjudging the respondent No. 4 namely Smt. Bhagabati Bar, as the bargadar in respect of 1.53 acres of land appertaining to plot No. 1772 in mouza Sapkhali hereafter referred to as the subject land. Fact of the case: The subject plot i.e. plot No. 1772 measuring 1.53 acres of mouza Sapkhali and other plot No. 2129/2567 measuring 18 acres of mouza Kachuberia originally belonged to Gobardhan Dingal, Sristidhar Dingal and Bipin Behari Dingal under whom one Girish Ch. Bar and after his death, his son Beni Madhab Bar was the recorded bargadar in respect of the aforesaid two plots of land. However, said Beni Madhab Bar purchased both the suit plots by the registered deed No. 3368 date 14.05.97. The respondent No. 3 i.e. BL & LRO, Chaktuldubi, P.S. Sagar issued a notice for hearing in respect of an application filed by the respondent No. 4 (Smt. Bhagabati Bar) for recording her name as bargadar in respect of the subject plot. It appears that Beni Madhab Bar who was the recorded owner and also the husband of respondent No. 4. Bhagabati Bar though purchased the subject land by the registered dt. 14.05.97, against sold the subject land being dag No. 1772 measuring 1.53 decimals of mouza Sapkhali on the same day of purchase to the applicant herein namely Smt. Sibani Giri by deed No. 3369 of 1997 said to be in order to meet his loan and to purchase some other land in mouza Kachuberia and said to have purchased the land in the name of his son and son's wife near his dwelling house. The applicant received the notice date 18.07.98 for hearing in case No. 1267Barga/98 on the basis of the application of the respondent No. 4 under section 21D of the WBLR Act. It is stated that in the said proceeding No. 126/Barga/98 hearing of which was made on 21.07.98, the recorded bargadar Beni Madhab Bar was not a party and said Beni Madhab Bar made a representation date 10.07.98 before the said respondent No. 2 laying his claim as a recorded bargadar of the subject land and his afterwards purchase of the same and again sale of the same to the favour of the applicant for the latter's purchase of other land near his dwelling house in the name of his relatives. The applicant appeared in the said hearing and submitted that Beni Madhab Bar was the recorded bargadar of both subject plot No. 1772 and other plot No. 2129/2567 measuring 1.53 dec. and.18 dec. respectively and remained in cultivating possession by delivery of share thereof. However, said Beni Madhab Bar ceased to be bargadar when he purchased the aforesaid plot of land and as such respondent No. 4 i.e. wife of said Beni Madhab Bar cannot be the bargadar in the subject land. Furthermore, Beni Madhab Bar after purchased sold the subject plot No. 1772 measuring 1.53 dec. of mouza Sapkhali to the applicant when there was to be no bargadar. It is alleged that the respondent No. 2 recorded the name of the respondent No. 4 as bargadar without considering the representation made by her husband namely Beni Madhab Bar and also without considering the submissions of the applicant. It is further alleged that the order recording the name of the respondent No. 4 as bargadar is without any reason and observation when respondent No. 4 was inducted as a bargadar. Being aggrieved by and dissatisfied with the barga recording of the name of the respondent No. 4, the applicant herein preferred LR appeal No. 71 of 2001 before the ADM and DL & LRO, South 24 Parganas but the said authority dismissed the appeal on 21.07.08 though the respondent No. 4 made the application under section 21D of the WBLR Act without any reason and basis whatsoever. Moreover, the owner of the land having not been heard in that proceeding, there was violation of the principle of natural justice. Furthermore, it is alleged, there was no any receipt showing delivery of bhag produce unto the owner for which the order recording the name of the respondent No. 4 as bargadar cannot stand. Moreover, for non 3 impleading Beni Madhab Bar in the barga proceeding, the said proceeding suffered from non-joinder of necessary parties. It has also been stated that respondent no. iv filed an application for maintenance under section 125 Cr.PC. in case no. M 65 of 1998 against her husband Beni Madhab Bar in which the respondent no. iv sworn an affidavit alleging the she was forcibly driven away from her matrimonial house for which she compelled to live with her brother. But in the application before the Bhag Chas Officer, said respondent No. 4 stated that her husband left residential house and went anonymity in whereabouts leaving her in the lull not to be looked after by him. It is further stated that she caught hold of the last straw and began to maintain herself by cultivating the subject plot with the help of her son since 1998 which was formerly cultivated by her husband. It is alleged that these contradictory statements in two different proceedings should not have end any credence in the proceeding. It is also alleged that the authority concerned should not have assumed any jurisdiction to declare the transfer as bad. These were the grounds amongst others for assailing the impugned order. In the aforesaid circumstances, the applicant prayed for setting aside the order date 29.06.05 passed by the Appellate Authority in LR Appeal No. 71 of 2001 which affirmed the order date 21.07.98 passed by the Revenue Officer, Sagar dist. South 24 Parganas in barga case No. 126 of 1998 and for injunction against the respondent or their agents from disturbing the peaceful possession of the subject plot and for interim relief thereto. The matter was admitted for hearing after condonation of delay and with the direction for service and for the authorities concerned to produce the relevant record. The respondent no. iv bargadar made appearance but ultimately no affidavit in opposition was filed. The relevant records being the proceedings were urged to have been annexed with the application which was argued to be sufficient to dispose of the matter without waiting further for the relevant records from the authorities concerned. That was how the hearing of the matter was concluded and posted for delivery of order. The main submission on behalf of the applicant was that undisputedly Beni Madhab Bar was the recorded bargadar in the subject plot being No. 1772 measuring 1.53 dec. of mouza Sapkhali and other plot being No. 2629/2569 measuring.18 dec. but subsequently he purchased the said land by registered deed No. 3368 date 14.05.97, it was the further submission with such purchase the barga right of purchaser merged into with the right of his ownership by purchase and there cannot remain any barga right of the purchaser and no question of inheritance of barga right of said Beni Madhab Bar. The next limb of submission was that on the same date Beni Madhab Bar sold the subject land including other land to the applicant by registered deed No. 3369 of 1997 and the applicant thereby became the owner of the subject land including that other land without any vestiges of barga rights. The submission was that the owner of the land was not made a party in that proceeding and that there was violation of the principle of natural justice. It was also contended that the erstwhile bargadar, being the husband of the respondent No. 4 submitted a representation disclaiming his barga right any more with the purchase of the subject land including other land by the registered deed date 14.05.97, It was the also the highlight in the submission that the inconsistent defences taken by the respondent no. iv in the proceeding under section 125 Cr.PC and bhag chas proceeding should have belied the case of the respondent No. 4. On the other hand, the submission the ld. Govt. Representative was that there was no dispute that Beni Madhab Bar, husband of the respondent No. 4 was the recorded bargadar in the subject land and the other land. It was the case of the state that as per the application made by the respondent No. 4 the bhag chas case No. 126 of 1998 was initiated under section 21D of the WBLR Act and a notice was issued to the owner of the subject land namely Smt. Sibani Giri the applicant herein and hearing was fixed on 10.07.98. It is submitted that after serving the notice the hearing of the matter commenced in presence of both sides. The order date 21.07.98 was clearly indicative that the authority concerned considered the peculiar circumstances under which the respondent No. 4 continued cultivation of the subject land with the help of her son and after proper enquiry, her name was recorded as bargadar in the subject plot and against the said order the applicant Smt. Sibani Giri filed LR appeal No. 71 of 2001 and in that proceeding she was represented by her advocate and also the advocate on behalf of the respondent and upon giving hearing to both the parties the appeal was dismissed by passing a reasoned order for which no interference was called for. Decisions with reasons Admittedly, Beni Madhab Bar, husband of Bhagabati Bar, respondent No. 4 herein was the recorded bargadar in subject plot No. 1772 measuring 1.53 dec. of mouza Sapkhali along with other plot. Said respondent No. 4 filed an application before the BL & LRO, Sagar for recording her name as bargadar in the subject plot stating certain facts on the basis of which the bhag chas case No. 126 of 1998 under section 21D of the WBLR Act was initiated. On the basis of the application a notice was issued to the petitioner therein namely Bhagabati Bar and upon the opposite party Smt. Sibani Giri and hearing was fixed on 10.07.98 as is evident from the copy of the notice annexed as P-3 to the application. The copy of the application made by the respondent No. 4 for recording her name as bargadar in the subject plot has also been annexed to the application. From the said application, the respondent No. 4 stated that her husband Beni Madhab Bar was a recorded bargadar in the subject land but her husband being aged and ill since 1385 BS, she with her sons was cultivating the subject land on coming to know that her husband was in a mood to abandon the cultivation to the favour of the owner of the land. It was further stated that in order to maintain herself and the members of the family she obtained the consent of the owner of the land and began to cultivate the said land from 1385 BS to 1402 BS and there was cordial relationship between them and the owner for which no dispute arose. In the year 1403 BS the owner of the land gained over her husband in that subject land was sold out to the erstwhile recorded bargadar, Beni Madhab Bar by registered deed date 14.05.97 vide deed No. 3368. The authority concerned has further observed in that impugned order that on the same date another deed was got executed being deed No. 3369 of 1997 in favour of the present applicant by the said Beni Madhab Bar. It is further observed in that impugned order that transactions were made with a purport to deprive the wife of erstwhile bargadar namely respondent No. 4 herein to continue to cultivate the subject landing barga right. It was the highlight in the impugned order that the prayer of the respondent No. 4 Bhagabati Bar was allowed and adjudged as bargadar, but upon field enquiry and on spot verification, which revealed that she cultivated the subject land on delivery of bhag produce to the owner with the help of her son. The question of abandonment of barga right of the erstwhile bargadar or commencement of the cultivation by the respondent No. 4 has no any concept of continuity in that the right of cultivation that was enjoyed by the respondent No. 4 was on her own right and made a prayer for recording her name as a bargadar under section 21D of the WBLR Act, the question of drawing and logic of abandonment of barga cultivation by the recorded bargadar did not arise. It is not the case of the applicant herein that with the execution of the deed of the year 1997 in favour of the erstwhile recorded bargadar there was induction of any other persons as a bargadar of the subject plot. It is equally not a case of the applicant that the subject land was under her personal cultivation. In her independent status the respondent No. 4 made an application and that application was allowed and in that proceeding the applicant Sibani Giri received a notice and she was represented and heard also. The mere fact that the erstwhile bargadar appeared before the proceeding and made representation against the prayer made by his own wife is found to be militative against his own defence and supportive of case of the respondent No. 4 that she made the application in her own right and not legal heirs of husband of erstwhile recorded bargadar. There was an observation in that impugned order that the transaction in question of the year 1997 was made with a view to defeat the claim of the respondent No. 4 is found to be supplemented by the appearance of said Beni Madhab Bar before the proceeding and filing a representation against the claim of his wife. We have come across the relevant proceeding wherefrom it appears that independent enquiry was conducted on the spot and the respondent No. 4 was found to be cultivating the subject land in her own right for which application was allowed. Furthermore, the present applicant also appeared before the Appellate Authority in LR Appeal case No. 71 of 2001 and she was represented by her appointed lawyer and both the parties put their submissions before the said authority and the Authority concerned was convinced that entire transaction i.e. execution of the transferred deed in favour of the husband of respondent no. iv and execution of another from the respondent No. 4 to the favour of the petitioner who was none but the daughter of the erstwhile owner was made with a view to defeat the claim of the respondent No. 4. The entire circumstances leading to the cultivation of the subject land by the respondent No. 4 on her being deserted by her husband also bears imprint from the impugned order. To reiterate, it bears to mention when the recorded bargadar left her in lull and finding no other alternative she caught hold of the last straw and started cultivating the subject land, which was fortified on spot enquiry by the authority concerned. It is no case of the appellant that no bhag produce was delivered to her and rather it is implicit from the case of the respondent No. 4 that bhag produce was delivered mutually. Having considered these evidence and material on record including the proceeding and the case of the respective parties, we are constrained to hold that the case of the applicant to dislodge the case of the respondent No. 4 is held to not to lie being devoid of merit. In another words, both the concerned authorities conferred in their findings that the respondent No. 4 was in cultivating possession of the subject land and her name was recorded to when the cultivation was left or obtained by her husband. Accordingly, we have no reason to interfere with the order and O.A. No. 3728 of 2005 (LRTT) stands dismissed. Let a plain copy of the order duly countersigned by the Principal Officer of the Tribunal be made over to the Ld. G.R. for communication to the BLLRO concerned for information and Xerox certified copy of the order be made over to the applicant/s, if applied for, on payment of requisite Court fees.
(3.) Challenge before the learned Tribunal was the order of the appellate authority passed under section 54 of the West Bengal Land Reforms Act, 1955 in appeal assailing the decision of the Revenue Officer concerned passed in Case No. 1267Barga/98 of Sag, which was a case for determination of right of bargadar under section 2IB of West Bengal Land Reforms Act.;