- (1.) BY this application the judgment and order of the learned West Bengal Land Reforms and Tenancy Tribunal (hereinafter referred to as the said Tribunal) dated 16th May, 2007 is assailed. The said Tribunal has dismissed the petitioners' original writ petition being c. R. No. 12890 of 1982 which was on being transferred by operation of law, to the Tribunal, renumbered the matter as being T. A. No. 69 of 2002. All the present applicants are sons and daughters of one Late Bhootnath singha Ray since deceased (herein after mentioned as the said deceased)the said Bhootnath Singha Ray and his sons and daughters are governed by the Mitakhsara School of Hindu Law.
(2.) THE original writ petition was filed by the said deceased and his sons, challenging the order of the Revenue Officer whereby a large portion of the land was declared to have been vested as being excess to the ceiling limit under the West Bengal Estate Acquisition Act (hereinafter referred to as the said Act ). During pendency of the said transferred writ petition, before the learned Tribunal, the deceased died intestate leaving him surviving his heirs and heiresses namely Anita Singha Ray being the sole widow, Gopal, utpal, Ujjal, sons, and Minati, Shyamali, Pronati, Purabi, Putul, Kumkum all being daughters. The said deceased, Gorachand, Nandalal, Dulal, Anil sushil and Sunil are all sons of Late Panchanan Singha Ray. It is stated that in or about 1951 there has been an amicable partition of the properties held by the joint Hindu family headed by Panchanan being the father, amongst himself and his three sons. After partition the aforesaid persons were possessing and/or enjoying the said property separately and therefore, in the records of rights their names were accordingly mutated separately. Under the rule of succession of the Mitakshara School of Hindu Law the sons and grand sons acquired their interest by birth. Thereafter in or about 1968 a title suit was filed by the aforesaid co-percener and/or shareholders of the properties and said title suit being 17 of 1960 was disposed of by filing a consent decree dated 11th March, 1961 by which the earlier separation and partition was recorded. There has been partition long before commencement of the said Act. Despite the aforesaid fact Revenue Officer of the Settlement Circle Camp Jangipara initiated a big rayat proceeding being No. 6 of 1966 under Section 6 (1) of the said Act only in the name of panchanan Singha Ray. The Revenue Officer proceeded with the said big rayat case basing on the quantum of land held by Panchanan Singha Ray on 14th April, 1956, actual date of vesting. The Revenue Officer totally ignored the aforesaid factum of partition. The order of vesting dated 11th may, 1962 was passed ex parte declaring a sizeable quantum of land as vested to the State as the same was found to be excess to the ceiling limit as on 14th April, 1956. The said decision thereafter was challenged subsequently by filing a writ petition being Civil Rule No. 8454 (W) of 1976 by his sons Bhootnath, Gorachand, Nandalal. By order dated 8th April, 1980 his Lordship the Hon'ble Mr. Justice G. N. Ray (as his Lordship then was)was pleased to take note that the parties are governed by the Mitakshara school of Hindu Law. As such initiation of the proceedings against father of the petitioner namely Panchanan was erroneous and the same should have been initiated against the members of the co-percener also. As such revenue Officer was given liberty to initiate a fresh big rayat proceedings against the petitioners and their father to decide the question of ceiling of land to be retained by the member of the co-percener in accordance with law. Further liberty was given that after disposal of the big rayat proceedings the Revenue Officer would be entitled to dispose of the land in accordance with law. Pursuant to the aforesaid judgment and order the Revenue Officer concerned initiated a fresh big rayat proceeding against the said Panchanan and his sons. During hearing of this matter before the Revenue Officer various documents were placed including consent decree passed in Title suit No. 17 of 1960. It appears from the records the Revenue Officer recognised the said family is a co-percenary joint Hindu family governed by mitakshara School of Hindu Law and as such Panchanan along with his other sons Dulal, Anil, Sunil, Sushil Goraehand, Nandalal were recognized as co-perceners but the Revenue Officer held that there has been no separation and partition amongst the co-perceners, therefore Panchanan was held to be a single member family and as per law the maximum quantum of land to a single member fgmily was allowed, The other co-perceners' interest was not recognised and practically earlier order of vesting was retained. Challenging the aforesaid order of fresh proceedings passed in the big rayat proceeding the said writ petition was filed.
(3.) MR. Ashok Banerjee, learned Senior Advocate appearing in support of this application submits that the learned Tribunal has gone wrong legally not setting aside the order of the Revenue Officer. A fresh suo motu proceeding initiated by Revenue Officer in terms of the order and direction of this Court without understanding the scope, purport of the order dated 8th April, 1980 passed in the writ petition (Civil Rule No. 8454 (W) of 1976 ). Justice G. N. Ray (as His Lordship then was) has specifically observed that the big rayat case could be initiated against the petitioners therein and also decision on of the question of ceiling of the land to be retained by the co-perceners in accordance with law could be rendered. It is admitted position that the family was governed by Mitakshara School of Hindu Law. The revenue Officer failed to take notice as the predecessor-in-interest of the petitioner Nos. 1, 2, 3, 4, 5 and 6, Panchanan and his another son Bhootnath all were co-perceners of the joint Hindu family. The Revenue Officer has failed to appreciate the fact that long before commencement of the West bengal Estate Acquisition Act, 1954, all the lands were partitioned and divided amongst themselves and they have been enjoying respective plots of land allotted by themselves mutually and this fact was duly brought to the notice of the Revenue Department by paying rates and taxes separately. The aforesaid factum of earlier partition has also been recorded and/or ratified by the compromise decree passed in Title Suit No. 17 of 1960. It is settled position of law under the Rule of Succession of Mitakshara school of Hindu Law the moment a child is born he gets his share in the ancestral joint property the relevant provision of the Estate Acquisition Act does not speak of separate enjoyment and partition it only stipulates interest in the estate. Therefore, while deciding the quantum of excess land Revenue officer has proceeded in wrong footing in the eye of law. The learned Tribunal has totally wrong in relying on the judgment of this Court reported in 86 cwn 202. According to him, therefore, the Division Bench judgment of this court has not discussed or decided the issue involved as to whether the provisions of Section 6 (1) of the said Act can be made applicable in case where there has been partition. Even assuming the ratio of the said decision is applicable in this case, still then, as factum of partition has been established by the evidence, the Revenue Officer as well as the learned tribunal should have held that each and every co-percener is entitled to their respective shares and in the process there cannot be vesting of any quantum of land.;