Arun Kumar Mitra, J.
1. This second appeal has been preferred challenging the judgment and decree dated 30.9.1997 and 6.11.1997 respectively passed by the learned Civil Judge, Senior Division, Jangipur in Title Appeal No. 25 of 1993 reversing the judgment and decree dated 10.3.1993 and 18.3.1993 respectively passed by the learned Munsif, 1st Court, Jangipur in Title Suit No. 61 of 1986.
2. This second appeal originates from a suit for declaration and permanent injunction. The case as has been made out by the plaintiffs in the Plaint is inter alia as follows :
'The suit property belongs to them and they are in possession of the same. Originally Raghunath Ghosh alias Srikanta Ghosh and his wife Smt. Jogomaya Devi used to possess the suit property. During revisional settlement the name of Srikanta Ghosh, husband of Smt. Jogomaya Devi was recorded and in final publication also the same appeared. It has been stated that Srikanta Ghosh and his wife took settlement of plot No. 931 from the then Zamindar Purna Chandra Chattopadhyay and plot No. 1106 from the then Zamindar Bindu Basani Devi respectively. After their death Dharani, Binod and Joyram Ghosh inherited the same. Ultimately on the death of above three persons the suit property devolved on Niranjan Chandra Ghosh and others. The said Niranjan Chandra Ghosh & others (respondents herein) used to possess the property and started enjoying the usufructs and those respondents even use to enjoy the mango of the trees of plot No. 931. According to the plaintiffs, (respondents herein) they have been enjoying the suit plot for more than 12 years.'
3. During L.R. record-of-rights operation the defendant No. 1 got his name recorded as bargadar in respect of plot No. 1106. Though the name of Smt. Jogomaya Devi was duly recorded in the 13th column of plot No. 931, the name of one Raghunath Saha was recorded in respect of same plot. The name of Raghunath Saha was recorded in respect of plot No. 931 in lieu of the name of Raghunath Ghosh. The plaintiffs further stated that taking advantage of such erroneous record-of-rights defendant No. 1 threatened to grab the crops standing on the suit properties and dispossess the plaintiffs therefrom. Defendant No. 1 has no interest in the suit property. It has also been stated in the Plaint that if the defendant No. 1 is able to produce documents before the Court to establish his right as bargadar, such document will be forged one. The defendant No. 1 tried to dispossess the plaintiffs from the suit property. So the plaintiffs filed the suit in the Civil Court.
4. In defence the defendant No. 1 in the Written Statement contended that actually plot No. 1106 belonged to Bindu Basani Devi. Then Jogomaya Devi, 2nd wife of one Raghunath Saha purchased the same through registered deed dated 30.4.1949. The plot No. 931 belonged to Madan Mohan Ghosh. Nathu Ghosh inherited the same, on the death of Madan Mohan Ghosh. Then he sold the same to Raghunath Saha through Registered Deed dated 13,11.1996. Raghunath Saha inducted defendant No. 1 (respondent No. 1 herein) as bargadar in the suit land. He cultivated the suit properties under Raghunath Saha and his wife Jogomaya Devi, said Jogomaya Saha takes share of produce of plot No. 1106 as land lady. On the death of Raghunath Saha, defendant No. 1 delivers the Bhag produce of plot No. 931 to defendant Nos. 2 to 5. The defendant Nos. 2 to 5 (respondent Nos. 2 to 5 herein) also contested the suit supporting the case of the defendant No. 1.
5. On the above pleadings the Trial Court framed the following issues :--
1. Is the suit maintainable in its present form ?
2. Is the suit barred by limitation ?
3. Is the suit bad for defect of parties ?
4. Is the suit barred by Section 21(3) of WBLR Act ?
5. Have the plaintiffs acquired any right, title and interest over the suit property ?
6. Are the plaintiffs entitled to get decree as prayed for ?
7. To what other relief, if any, are the plaintiffs entitled ?
The learned Trial Judge also framed the following Issues as additional issues :--
8. Whether Raghunath Ghosh and his wife Jogomaya Devi took settlement of the suit property from the then Zamindar or not.
9. Whether the entry in R.S. record-of-rights is baseless or not.
10. Whether the Bandobasta cheques are created and antedated documents or not.
On contest and after hearing the learned Advocates for the parties, the learned Trial Judge dismissed the suit against the defendants Nos. 1 to 5 with costs and ex parte against proforma defendant No. 6 without costs.
6. Being aggrieved the plaintiffs preferred and the said title appeal being Title Appeal No. 25/93 was allowed by the learned Appellate Court below setting aside the judgment and decree passed by the learned Trial Judge. Hence this second appeal has been preferred by the defendant.
7. Now before hearing this appeal, this Court is to see whether this second appeal involves any substantial question(s) of law or not.
8. On perusal of the records, the judgment of both the Courts below and on consideration of the pleadings it appears to me that following are the substantial question(s) of law to be decided in this second appeal.
1. Whether this suit is maintainable in view of the provisions of Section 51C of the West Bengal Land Reforms Act, 1955 and/or whether the provisions of Section 51C is attracted in this case ever after amendment of pleadings.
2. Whether the Appellate Court below ought to have dismissed the suit observing that after arrival of the report from the Junior Land Reforms Officer under Section 21(3) of the West Bengal Land Reforms Act, nothing remains in the suit to be decided.
3. Whether the title of the plaintiff can be declared in the manner as prayed for without correcting the record-of-rights, more so when the State of West Bengal has been made party on amendment of the pleadings.
4. Whether the Appellate Court below acted in terms of Section 96 of the Code of Civil Procedure or acted on conjectures.
5. Whether the judgment and decree passed by the Appellate Court below is perverse or not.
9. The learned Counsel appearing for the appellants/defendant No. 1 submits that the Trial Court rightly dismissed the suit and the first Appellate Court merely acting on conjectures without scrutinising the judgment and decree passed by the Trial Court, reversed it.
10. The learned Counsel for the appellants submitted that the suit is for declaration of title and permanent injunction in respect of the suit property, but, there is no prayer for correction of record-of-rights, even if after the amendment of the Plaint allowed by order dated 14.3.1991, the prayer for correction of record-of-rights has not been imported. According to the learned Counsel for the appellant, since the suit does not include the whole claim and there is relinquishment of part of claims, the suit cannot be decreed or title cannot be declared in view of the provisions of Order 2 Rule 2 of the Code of Civil Procedure. The learned Counsel for the appellants also submits that in view of the pleadings of the plaint and/or its amendment the suit is hit by the provisions of Order 7 Rule 7 of the Code of Civil Procedure. The learned Counsel further submits that in view of the provisions of Section 51C of the WBLR Act the suit cannot be held to be maintainable inasmuch as without correction of record-of-rights, title cannot be declared and correction of record-of-rights cannot be done by the Civil Court in view of the provisions of Section 51C of the WBLR Act, 1955. The learned Counsel for the appellants also submitted that in view of the provisions of Section 21(3) of the West Bengal Land Reforms Act immediately the decision arrives from the JLRO as to whether the claimant-defendant is a bargadar or not, the Appellate Court below could not have any scope to examine the judgment of the Trial Court on appeal. More so in this case no appeal has been preferred under Section 19 of the WBLR Act, against the order passed by the JLRO under Section 21(3) of the said Act. The provision of Section 21(3) is very clear and the Appellate Court below should have accepted the judgment and decree passed by the learned Trial Judge and should have dismissed the suit. The learned Counsel for the appellants also submits that the learned Appellate Court below is duty bound to scrutinise the judgment of the Trial Court under Section 96 of the C.P. Code but the learned Appellate Court below did not at all consider the same and purely acted on conjectures. Not only the judgment and decree, according to the learned Counsel for the appellants, is liable to be set aside on the above score or grounds but also it is liable to be set aside on the ground of perversity. The judgment and decree passed by the Appellate Court below in fact suffers from the vice of non-consideration of the evidence on record.
11. The learned Counsel for the respondent submitted that the suit filed by the plaintiff is for declaration of his title and injunction. By written statement the title of the plaintiff has been disputed. In that event it was the duty of the learned Trial Judge to decide the question of title and not to dismiss the suit. The learned Counsel for the respondent further submits that this is not a case where the ownership is admitted and the question has arisen as to whether the defendant No. 1 is the bargadar under the admitted owner. Here the case is totally different. Naturally the learned Munsif wrongly placed reliance on the report of the Block Land and Land Reforms Officer. It appeared from the finding of the learned Trial Judge that the learned Trial Judge proceeded first on the basis that Raghunath Saha is the owner of the property and the defendant No. 1 is a bargadar under the successor-in-interest of Raghunath Saha. The learned Counsel further submits that there is no dispute that firstly the Trial Judge is to come to a decision regarding title. The learned Counsel for the respondent also submits that Section 21(3) is not a total bar in entertaining a suit for declaration and the learned Trial Judge has got the power to scrutinize the report or the finding arrived at by B.L. & L.R.O. under Section 21(3) of the West Bengal Land Reforms Act, 1955. The learned Counsel further submits that the bar must be specific bar and unless the bar is provided in the statute is specific, the jurisdiction of the Court is not ousted.
12. The learned Counsel also submits that coming to conclusion solely on the basis of the finding of the B.L. & L.R.O. by the learned Trial Judge is wrong. The learned Counsel placing reliance on the decisions mentioned hereinbelow, submitted that Section 21(3) of the West Bengal Land Reforms Act does not say about the ouster of the jurisdiction of the Civil Court. The learned Counsel also submits that the provision of 51C(2) is not attracted in this case. The learned Counsel further submitted that the judgment of the Appellate Court below is absolutely correct in the context, when it observed that 'This Court is not concerned with the barga matter'. The learned Counsel also submitted that the defendant No. 1 made his claim as bargadar under Raghunath Saha who is absolutely a different personality having no right title and interest in and over the suit plot. The learned Counsel further submitted that the learned Trial Judge failed to consider the prayer made out in the Plaint and assumed jurisdiction going beyond the pleadings. The learned Counsel therefore, submits that the judgment and decree passed by the Appellate Court below should be upheld. Reliance has been placed on the following judgments and claim and counterclaim have been made and let me now discuss all the cases referred to or relied on by the parties.
13. : [1965]57ITR643(SC) (Kamala Mills v. Bombay State) paragraph 32 of the above decision of the Apex Court has been relied upon which is quoted hereinbelow :
'There is one more aspect of the matter which must be considered before we finally determine the question as to whether 8.20 excludes the jurisdiction of the Civil Court in entertaining the present suit. Whenever it is urged before a Civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the Civil Courts jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. The relevance of this enquiry was accepted by the Privy Council in dealing with 8.67 of the Income-tax Act in Raleigh Investment Co's case, 74 Ind App 50 : AIR 1947 PC 78 (supra) and that is the test which is usually applied by all Civil Courts.'
14. The next decision relied upon is : [1966]2SCR553 (Ramswarup and Ors. v. Shikhar Chand and Anr.). In this decision Hon'ble Apex Court observed in the manner as follows :--
'Therefore, while upholding the contention raised by Mr. Goyal that the jurisdiction of the Civil Courts is barred, we wish to make it clear that this contention will not avail Mr. Goyal if the respondent's plea, if upheld, would render the permission granted by the Commissioner totally invalid and a nullity.'
15. The next decision relied upon is 1975(2) C LJ page 447 (Chapala Bala Adhikary v. Monoranjan Das and Ors.). In this decision the Hon'ble Single Judge of this High Court observed in the manner as follows :--
'By applying the same reasoning in the construction of Sub-section (3) of Section 21, I hold that the Court is debarred from deciding the question whether a person is or is not a bargadar but the Court has not been denuded of its power to decide other questions and issues involved in a suit or proceeding. The Sub-section (3) of the Section 21 thus only partially affects the jurisdiction of the Civil and Criminal Courts in suits and proceedings in so far as the question mentioned in Sub-section (3) is concerned. The jurisdiction of the Courts to decide the other issues or questions, if any in suits or proceedings has not been affected. The West Bengal Land Reforms (Amendment) Act, 1974, inserted the word 'otherwise' in Sub-section (2) of Section 18 of the West Bengal Land Reforms Act after the words, figure and brackets 'referred to in Sub-section (1)'. Several decisions of this Court have considered the scope of unamended Sub-section (2) of Section 18. Before insertion of the word 'otherwise' the jurisdiction of the Officer or Authority mentioned in Sub-section (1) of Section 18 to decide the question whether a person was a bargadar or not and to whom the share of the produce was deliverable was conditional or dependent upon existence of a dispute referred to in Sub-section (1). The authority or officer in deciding such a dispute under Sub-section (1) could incidentally determine the question whether a person was a bargadar or not. See the decisions of this Court in the cases Jadu Nath Roy and Ors. v. Lal Mohan Malik and Ors., 66 CWN 88 ; Sarat Chandra Panda and Ors. v. Moni Mohan Naskar, 67 CWN 1076. The word 'otherwise' has been inserted in Section 18 to confer jurisdiction upon the officers or authorities to decide the question whether a person is a bargadar or not and to whom the share of produce is deliverable even in the absence of any dispute referred to in Sub-section (1). After the said amendment in Sub-section (2) even if such a question arises in any other different way the officers or authorities under Sub-section (1) of Section 18 can assume jurisdiction under Sub-section (2) and determine the question. But the amplitude or the extent of their jurisdiction is still limited to decision on the question whether a person is a bargadar. A Court under Section 21(3) can refer only those questions which come within the scope of a decision under Sub-section (2) of Section 18. In other words, the Court can only refer under Sub-section (3) of Section 21 those questions which the authorities or officers mentioned in Sub-section (1) of Section 18 have jurisdiction and Sub-section (2) to determine. Thus Section 18(2) which is complementary to the Section 21(3) indicates the scope of the said Sub-section (3). I have already observed that those officers and authorities under Section 18(2) can only adjudicate whether a person is a bargadar or not. Such officers or authorities have no jurisdiction to decide other matters of civil dispute, e.g. claims of tenancy, license, trespass, prescriptive rights, etc.'
16. Reliance has been placed on the decision reported in : AIR1979Cal256 (Charan Santhal v. Indrajit Sen and Ors.). In this decision the following is the observation of one learned Single Judge of this High Court:
'Here, in the present case, we are concerned with the Law as it stood prior to the 1974 amendment as aforesaid. Under that law, three disputes, namely, the dispute in respect of (i) division or delivery of produce, (ii) recovery of produce under Section 16(a) and (iii) termination of cultivation by the bargadar, was left to the exclusive jurisdiction of the special tribunal to determine and on the provisions of the later part of Section 21(1) Civil Court's jurisdiction in respect of such disputes was ousted. A dispute as to whether a person is a bargadar or not is certainly not a dispute coming within any of the three disputes specified as above by Section 18(1) of the said Act. Under the provision of Section 18(2), however, if in deciding any dispute referred to in Sub-section (1) any question arises as to whether a person is a bargadar or not such question shall be determined by the special tribunal. Thus the special tribunal is conferred the jurisdiction to decide such a dispute though under the provision of Section 18 read along with the later part of Section 21 that dispute may not have been left to the exclusive jurisdiction of the special tribunal to decide. But nonetheless the first part of Section 21(1) provides that no order or other proceeding whatsoever under this chapter shall be questioned in any Civil Court. Much can still be said in favour of the view taken by the learned Additional District Judge that where the decision of the special tribunal on any dispute as to whether a person is a bargadar or not constitutes the very foundation of an adjudication left to the exclusive jurisdiction of that tribunal under Sub-section (1) of Section 18, that decision constitutes such an integral part of the order itself made in the proceeding under Section 18(1) that it can no longer be treated to be more incidental and the bar under the first part of Section 21(1) would equally be invoked in respect of that part of the decision of the special tribunal. Otherwise taking illustration from the present case when the special tribunal has directed termination of cultivation by the defendant No. 1 on a finding that he is a bargadar and when he has been evicted in execution of such an award, to allow the Civil Court to adjudicate the said issue once more would only mean that the defendant can be restored to possession on a declaration that he is a tenant and that in no uncertain terms means nullifying the award of the special tribunal. The Division Bench in the case of Sarat Chandra Panda v. Sk. Amin Ali was not called upon to decide this point conclusively but even then therein it was observed that in the matter of determination of the question as to whether a person is a bargadar or not under Section 18(2) the ouster of the Civil Court's jurisdiction would be to the extent necessary for the purpose of Section 18(1), In a given case, therefore, if the decision on such an issue forms an integral part of the decision of any of the disputes referred to in Section 18(1), necessarily that is taken out of the Civil Court's jurisdiction even on the basis of the observation so made. This aspect appears not to have arisen for consideration nor was it considered in the case of Sudarshan v. Janaki. However, sitting singly I am bound by the Bench decision in the case of Sudarshan v. Janaki and shall proceed on the basis of that decision of the Bhagchas Board to the effect that defendant No. 1 was a bargadar was merely incidental and would not bar the jurisdiction of the Civil Court to decide that question once more in the present suit. The contrary view taken by the learned Additional District Judge on this point, therefore, should not be sustained.'
17. The next decision which has been referred to is reported in 1980(1) CLJ page 75 (Haradhan Chongdar v. Jitendra Nath Hambir). In this decision the Hon'ble Division Bench of this High Court observed fn the manner as follows:--
'In our view the bar of jurisdiction imposed by Section 21(3) of the West Bengal Land Reforms Act is not an absolute bar. It only bars the jurisdiction of the Court to decide the question whether a person is or is not a bargadar if such question is raised in the suit. In all other respects the Court retains jurisdiction over the suit. Section 21, and Section 18 read together do not indicate either expressly or by implication that the Court would have no jurisdiction to pass an order of temporary injunction if a case in that behalf is made out. In deciding an application for temporary injunction the Court does not adjudicate upon the issue. Before an injunction is granted the question in dispute need not be examined or its decision anticipated. Granting of an injunction does not mean a final adjudication of the dispute nor is the plaintiff required to establish his title before he can legitimately ask for an order of injunction in his favour. In order to succeed on an application for temporary injunction all that he need show is a prima facie case as to the existence of the right alleged and it is but fair that when such a prima facie is made out the property should be preserved in status quo. In other words in disposing of an application for temporary injunction the Court is to see whether there is a prima facia, the balance of convenience and inconvenience and the question of irreparable injury etc. In the suit now pending before the learned Subordinate Judge the plaintiffs have raised those questions in their application for temporary injunction. While agreeing with Mr. Ghosh that since the defendant raised a dispute as to his status as a bargadar the learned Subordinate Judge had to refer the same to the appropriate officer for decision on that issue only, we are unable to accept the contention that once such a reference is made the Court would have no jurisdiction to consider an application for temporary injunction for the simple reason that the decision on such an application does not amount to a decision of the disputed issue. There may be cases where it may be necessary in the interest of justice to protect the present possession of either party till the decision is made by the appropriate authority and the Land Reforms Act does not empower the officer to pass any order of temporary injunction. We are, therefore, of the view that the jurisdiction of the Civil Court is not ousted merely because a disputed question as to the status of the defendant who claims to be a bargadar is under reference or is referred to the competent authority for decision. Even where such a reference is made the Court remains in seisin of the suit and has to dispose of the same after the decision by the authority is received. In the instant suit there is indeed a case for referring the dispute to the appropriate authority and the learned Subordinate Judge went wrong in refusing to do so. The learned District Judge in disposing of the appeal has set the wrong right by directing a reference in that regard but he again went wrong in holding that the application for temporary injunction should be disposed of only after the decision by the appropriate authority is made. If the application, for temporary injunction is kept pending till such time, the very purpose of the application would be frustrated and that is not what the law provides. A single Bench decision in the case of Kalidas Mukherjee v. Jari Singh, reported in 1978(1) CLJ 390 has held that the jurisdiction of the Civil Court to pass suitable orders on an application for temporary injunction is not ousted by the provisions of Section 21 of Act, and we are in complete agreement with the view so taken.'
18. The next decision referred to is the decision of learned Single Judge reported in 1978(1) CLJ 390 (Kalidas Mukherjee v. Jari Singh). In this Decision one learned Single Judge of this High Court observed :
'In my view, the learned Subordinate Judge has failed to exercise a jurisdiction vested in him by law not disposing of the Misc. Appeal in question in accordance with law. As the date the appeal was disposed of no reference under Section 21(3) had been yet made by the Trial Court. Secondly, I have pointed out in my judgment in Chapala Bala Adhikary v. Monoranjan Das and Ors., reported in 1975(2) CLJ 447 at page 452 that the Court has been now debarred under Section 21(3) from deciding the question whether a person is a bargadar or not. But the said ouster of jurisdiction is partial and the Court is still competent to decide all other questions involved in a suit. Secondly, the lower Appellate Court misdirected itself with regard to the scope of an appeal arising from an order refusing temporary injunction. At this stage no determination of any of issues involved in this suit is to be made. The Court in hearing an application for temporary injunction and the appeal arising therefrom is to consider only the prima facie cases of the parties, balance of convenience and inconvenience, question of irreparable injury etc. Since at this stage, the Court will not make adjudication of the rights of the parties. I do not agree that disposal of the temporary injunction matter would prejudice proceedings, if any, under Section 21(3) of the West Bengal Land Reforms Act. In fact, Section 21(3) read with Section 18(2) does not provide for passing of interlocutory orders. Therefore, the Civil Court is at liberty to hear the application for interim orders notwithstanding that a reference under Section 21(3) may be contemplated. It may be also pointed out that in case a reference under Section 21(3) is made and the authorities under Chapter III determine the said question and returns the same to the Civil Court may at its discretion modify and/or pass further orders in respect of the temporary injunction matter. But law does not contemplate that merely because there might be a reference under Section 21(3), the Civil Court shall not have any jurisdiction even to make an order of temporary injunction even if the conditions for passing such an interlocutory order be fulfilled. But, I may at once add that in the instant case I have not considered whether or not the application for temporary injunction applied for by the plaintiff should be granted or not. The lower Appellate Court will address itself to the said question while again hearing the appeal in question. I also make it clear that I am not deciding at this stage whether or not a reference under Section 21(3) of the West Bengal Land Reforms Act should be made in the instant case. The said question is also left open. When the appeal has not been heard on merits the matter should be remitted to the lower Appellate Court for rehearing the same in accordance with law. The observations made in the judgment of the lower Appellate Court before remand will not be binding on either of the parties at the rehearing of the same.
19. The next decision which has been relied upon has been reported in : AIR1976Cal255 (Sudarshan Ghosh v. Janaki Nath Pandit). In this decision the Hon'ble Division Bench of this High Court discussed in the following manner of the issue relating to the decision of Bhagchas Officer under Section 21(3) of the West Bengal Land Reforms Act and when it can be challenged in the relevant paragraph relied on is quoted hereinbelow :
'14. With regard to the first contention advanced on behalf of the appellant it appears that Section 18(2) of the West Bengal Land Reforms Act empowers the officer appointed by the State Government for the purpose of Chapter III of the said Act to decide a question as to whether a person is a bargadar or not which arises in deciding any dispute relating to any of the three matters specified in Sub-section (1) of Section 18 of the said Act. It also appears from Section 21 of the said Act that the order of the officer or authority passed in the Bhagchas proceeding in respect of the matters mentioned in Section 18 cannot be questioned before any Civil Court in a suit. Thus on a consideration of these two sections it is clear that the Bhagchas Officer has been conferred with the jurisdiction to decide the question whether a person is a bargadar or not only if such a question arises in connection with the decision of a dispute relating to any of the three matters mentioned in Section 18 of the said Act and not otherwise. The Bhagchas Officer, therefore, cannot decide this issue as to whether a person is a bargadar or not independent of and not arising in connection with the decision of any dispute relating to any of the matters mentioned in Section 18. In other words, the Bhagchas Officer is not competent to pass an order to determine any person as bargadar on an application for a decision of such a question simpliciter that is for declaration of the status of a person, as bargadar. This clearly shows that the Civil Court had jurisdiction to entertain a suit for decision of the question whether a person is a bargadar or not and for a declaration of the status of such person if there is no previous adjudication by the officer or authority in a bhagchas proceeding as envisaged in Section 18 of the Act. The Civil Court is thus competent to entertain a suit involving to determine on the question as to whether the plaintiff is a bargadar or not and such suit is not barred by provisions of Section 21 of the said Act if there has been no previous determination of the said question by the officer or authority in a bhagchas proceeding in connection with the decision of any of the matters mentioned in Section 18 of the said Act.'
20. Thereafter, another decision on the similar context had been referred to which has been reported in 1992(1) CHN 255, Gour Hari Ghosh v. Shiv Sankar Ghosh. In the instant case the learned Single Judge of this High Court relied on the judgment delivered in Chapala Bala Adhikary's case (supra) inasmuch as the facts of the two cases were identical. Then again reference was made in respect of the decision reported in 85 CWN 1141, Dharmadas Pal v. Pulin Behari. In this judgment the learned Single Judge of this High Court observed that the suit was for declaration of title and for permanent injunction. It is contested by the defendant on one of the grounds amongst the others that he had been a bargadar and the suit was decreed and in appeal the Appellate Court could direct the Junior Land Reforms Officer concerned to hold an enquiry under Section 21(3) of the West Bengal Land Reforms Act. Now, if the report goes against the plaintiff, the plaintiff can pray for rehearing by the Officer concerned as the decision is ex parte. On the aforementioned submissions the learned Single Judge arrived at a conclusion principaly that even a proceeding under Section 21(3) can be interferred with by the Civil Court, of course, on certain conditions. The next decision referred to which has been reported in 88 CWN page 304 (Hirendra Nath Mondal v. Rajendra Nath Satpati).
21. Insofar as the formulation of substantial question of law, reference has been given to the judgment reported in : AIR1999SC864 (B & Y Noba B Bhaurao S. Shemade v. Maroti Bhaurao Marnor). In this decision the Hon'ble Apex Court held that under Section 100 of the Code of Civil Procedure jurisdiction of the Court can be exercised on the basis of substantial question of law framed at the time of admission of appeal and when the said procedure has not been followed, the judgment of the High Court is not tenable and in that case the Hon'ble Apex Court remanded the matter back to the High Court for framing of substantial questions of law.
22. Reliance was then placed on the judgment reported in : [1999]2SCR728 (Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors.). In this decision the Hon'ble Apex Court held that if the question of law termed as substantial question stands already decided by a larger Bench of the High Court concerned or part of the Privy Council or by the Federal Court or by the Supreme Court, its mere wrong application to facts of the case the same would not be termed to be a substantial question of law. In this judgment the Hon'ble Apex Court also observed that the concurrent findings of the fact, howsoever, erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law would distinguish on a substantial question of fact.
23. Lastly, a decision has been referred to which has been reported in AIR 2001 page 17.21 (K. Raj v. Mathamma) in which the Hon'ble Apex Court observed again that formulation of substantial question of law is a must.
24. In the light of the decisions referred to above and observations made therein, first it can be said that here substantial questions of law has already been formulated. Though all those questions were not in the grounds of appeal but it is also settled by the Hon'ble Apex Court by subsequent decisions that if there is any substantial question of law in a second appeal which needs to be decided but that it is not taken as a ground of second appeal, the Court can formulate the said substantial question of law and decide the same.
25. Let us have a look into the case from its origination and proceed accordingly towards the answers of the questions. This is a suit for declaration and permanent injunction, State of West Bengal has been made Proforma defendant and it has been stated in the Plaint that since the State is the custodian of records, it has been made Proforma defendant. In the body of the Plaint though it has been incidentally stated that the record-of-rights is wrong but in the plaint there is no such prayer that such record should be corrected. In absence of such prayer it cannot be said that Section 51C of the West Bengal Land Reforms Act has been attracted. Again, if the record-of-rights stands though the record-of-rights does not indicate ownership but it indicates prima facie possession, then without correction of record-of-rights the prayer for permanent injunction in the matter of possession cannot be entertained.
26. The prayer as has been made out in the Plaint is as follows :
a) Declaration of title in respect of the suit property mentioned in the Schedule below and permanent injunction restraining the defendant No. 1 (Sachin Ghosh) from disturbing the peaceful possession of the plaintiffs (Niranjan Chandra Ghosh & Ors.) setting up a different person as owner on the basis of baseless record-of-rights.
b) Other relief or reliefs as the plaintiff is entitled to under the law ;
c) Decree as prayed for.
27. In the body of the Plaint it has been mentioned that in absence of the plaintiff, the defendant No. 1 got his name recorded as bargadar illegally and the said record-of-rights is baseless. But Section 51C of the West Bengal Land Reforms Act is not attracted unless somebody pray for correction of record-of-rights.
28. The next question comes regarding applicability of Section 21(3) of the West Bengal Land Reforms Act. Section 21(3) of the West Bengal Land Reforms Act provides in the manner as follows :
'21(3) If any questions as to whether a person is or is not a bargadar arises in the course of any suit, case, appeal or other proceedings before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in Sub-section (1) of Section 18 for decision and such Court shall dispose of the suit, case, appeal or other proceedings in accordance with the decision communicated to it by the officer or authority mentioned in Sub-section (1) of Section 18 to whom the question was referred.'
29. Section 21(4) of the West Bengal Land Reforms Act creates a bar in the jurisdiction of any Court in interferring with the decision of the authority to whom the dispute regarding the claim of bargadar or the dispute between the Landlord and bargadar has been referred to and such decision will be binding and it cannot be interferred with except by way of appeal under Section 19 of the West Bengal Land Reforms Act.
30. Now considering the ratio of the provisions of Sections 21(3) and 21(4) of the West Bengal Land Reforms Act and considering the ratio of the decisions referred to above it can be said that the Bhagchas Officer can settle the dispute as to whether a person is or is not a bargadar and the particular landlord but it does not come out from the section itself or from the citations referred to above by the learned Counsel that the decision given by the Bhagchas Officer under Section 18(1) of the West Bengal Land Reforms Act, in a referred case under Section 21(3) is untouchable. The Civil Court has got the power to scrutinize the decision, such as if the decision has been taken by the Bhagchas Officer ex parte or in the course of taking such a decision the Bhagchas Officer violates the principles of natural justice then obviously the Civil Court can interfere and remand it back to the Bhagchas Officer for a fresh trial. Nowhere it has been provided that immediately decision comes from the Bhagchas Officer to the Court the suit is to be dismissed or the appeal is to be dismissed. In fact, this decision comes in as a concrete piece of evidence on which reliance can be placed or is to be placed by the Civil Court, of course, if after scanning the decision of the Bhagchas Officer the Civil Court finds that it is in accordance with law. In the instant case from the prayer and the body of the Plaint it appears that the plaintiff has prayed for declaration that the defendant No. 1 is not at all bargadar and the defendant No. 1 has set up somebody else as owner and placed himself in the position of bargadar and has tried to establish his right.
31. Now, if the plaintiff says that from the prayer it appears that he has prayed for permanent injunction against the defendant No. 1 so that he cannot induct a new person as owner and claim bargadar relationship under the said newly inducted owner. Therefore is it fact that the plaintiff prays for declaration against the bargadar, defendant No. 1 or he prays for declaration against the person allegedly set up/inducted by the bargadar, as the owner. The second part of the contention cannot be acceptable in view of the fact that the said newly inducted person Raghunath Saha or his wife, they are to parties to the suit and the plaintiff has not prayed for declaration of title against them and injunction against them. In that view and on plain reading of the Plaint it clearly appears that the plaintiff apprehended disturbance of the possession in and over the suit property from the part of the defendant No. 1. Now, in the Written Statement the defendant No. 1 claims to be bargadar in respect of the suit plot. In course of the suit naturally the question has arisen whether the person is a bargadar or not.
32. The next question then comes under whom he is a bargadar. Though the next question under whom Sachin Ghosh is a bargadar, incidentally comes in the picture but the dispute is in connection with his right in and over the suit plot as bargadar. In that view of the matter it can be safely said that provision of Sections 21(3) and 21(4) of the West Bengal Land Reforms Act are attracted, against the decision of the Bhagchas Officer. No appeal has been preferred under Section 19 of the Act. Therefore, the decision of the Bhagchas Officer comes to the Trial Court as irrebuttable evidence. Though the learned Counsel for the respondent at certain point of time wanted to challenge this decision of Bhagchas Officer and submitted that this Court can interfere with the decision of the Bhagchas Officer. This proposition cannot be accepted inasmuch as it is purely question of fact and not a question of law. Obviously, this is a question of law as to whether the Court can scrutinize the decision of the Bhagchas Officer given on reference under Section 21(3), or not but after the decision not being challenged under Section 19 of the West Bengal Land Reforms and after it is being accepted the question becomes a question of fact, not a question of law.
33. In that view of the matter, provision of Section 21(3) is attracted here and since there is no prayer for correction of record-of-rights naturally the additional issue framed by the learned Trial Judge whether the entry in R.S. record-of-rights is baseless or not, is not a proposition. Though immediately the heirs of Raghunath Saha were made parties but still now the relationship in between Sachin Ghosh and Raghunath Saha could not be demolished by any piece of evidence.
34. In that view of the matter it is held that Section 51C of the West Bengal Land Reforms Act is not attracted where there is no prayer for correction of record-of-rights. It is also held that the decision under Section 21(3) can come under the scrutiny of the Civil Court but to a limited extent as to whether the decision has been made in violation of the statutory provision or as to whether in violation of principles of natural justice or the decision has been taken without considering the material evidence on record and not otherwise. The decision of the Appellate Court below to the extent that it is a title dispute or it is a conflict between two records-of-rights cannot be said to be acceptable in view of the fact that initially the prayer concerned the defendant No. 1 Sachin Ghosh who took place as a bargadar in and over the suit plot and no prayer was or is there regarding correction of record-of-rights and establishment of the right of the landlord. Niranjan Chandra Ghosh and others in the Plaint made Sachin Ghosh as defendant No. 1 and though made State of West Bengal as proforma defendant but did not pray for correction of record-of-rights and prayed for declaration of title against Sachin Ghosh and Sachin Ghosh claimed as bargadar under Raghunath Saha and then only a pertinent question arose that assumingly the bargadar goes still then how the suit can be made maintainable without prayer for correction of record-of-rights, though it can be said that the record-of-rights is not a document of title but it is prima facie document of possession and it has got initial presumptive value until corrected or rebutted by evidence. So when the decision given by the Bhagchas Officer under Section 21(3) comes as a solid block of evidence, then how can the Appellate Court below held that the Appellate Court below is not bothered about the landlord-bargadar relationship.
35. In my view also the Appellate Court below did not make a proper scrutiny of the Trial Court judgment as envisaged in Section 96 of the Code of Civil Procedure and did not test the judgment and decree of the learned Trial Judge on proper tests of statutory dictates. Since, the judgment and decree passed by the Appellate Court below failed to consider the evidence on record in its proper perspective and sometimes in contradictions the lower Appellate Court can be termed as perverse. In view of the discussions made above and on consideration of the evidence on record and the submissions made by the learned Counsel for the respective parties, I, therefore, hold that the judgment and decree passed by the Appellate Court below is bad in law and the learned Trial Judge rightly dismissed the suit. The instant appeal is therefore allowed. The judgment and decree passed by the Appellate Court below is set aside and the judgment and decree passed by the Trial Court is affirmed.
36. Let the decree be drawn up accordingly. Parties are to bear their own costs.
37. Let the L.C.R. be sent down to the Court below forthwith.