JUDGMENT
Subhro Kamal Mukherjee, J.
1. This second appeal is directed against the Judgment and decree dated August 8, 1981 passed by the learned Additional District Judge, Second Court at Krishnanagar, District: Nadia in Title Appeal No. 13 of 1981 affirming the judgment and decree dated December 20, 1980 passed by the learned Munsif, Additional Court at Krishnanagar, District: Nadia in Title suit No. 116 of 1980.
2. On or about August 23, 1975 the plaintiff/appellant instituted the present suit for declaration of his title and permanent injunction alleging that the suit property originally belonged to Brindaban Chakraborty who executed a deed of gift in favour of the plaintiff in the year 1954. The possession was, also, delivered in favour of the plaintiff. Since the date of acceptance of the gift, the plaintiff is in possession of the suit property and in the recent survey operations his name was duly recorded in respect of the premises in suit and khatians were finally published. The plaintiff is paying rent to the Government up-to-date. However, the State initiated a proceeding under Section 5A of the West Bengal Estates Acquisition Act, 1953 and the Revenue Officer held that the deed of gift was not bonafided. Although a Civil Rule was issued on an application under Article 226 of the Constitution of India, but the Civil Rule No. 198(W) of 1970 was discharged on July 9, 1973 without, however, prejudice to any other right of the plaintiff to challenge the proceeding in other forum. The suit was instituted after serving a notice dated August 30, 1974 under Section 80 of the Code of Civil Procedure.
3. The State of West Bengal contested the suit by filing a written statement on October 5, 1977 and in the written statement it is alleged that the suit land had vested in the State and the plaintiff has no right, title interest over the suit properties.
4. The learned Munsif took note of the fact that the State accepted rents from the plaintiff and issued rent receipts in favour of the plaintiffs, but the Court held that though rents were paid, but by payment of rents to the Tahasildars the title of the plaintiff does not remain in respect of the vested land as the Tahasildars are nothing but an agent for collecting rent on behalf of the State. The learned Munsif held that the decision in the case of Panchu Molla v. State of West Bengal and Ors. reported in 1980(2) CLJ page 1 is not applicable in the facts of this case. Unfortunately, the learned Munisif did not indicate in his judgment as to why the said ruling is not applicable in the facts of this case.
5. The learned Additional District Judge affirmed the decree and held that by continuous payment of rent, the plaintiff is not entitled to claim title as there has been no mention in the plaint that title has been claimed on that account.
6. Although no substantial question of law was framed at the time of hearing of the appeal under Order 41, Rule 11 of the Code of Civil Procedure, Mr. Tapas Bhattacharya, learned Advocate for the appellant, raises the following substantial question of law at the hearing of the appeal in presence of the learned Advocate for the respondents :-
In view of the admitted position that the State has accepted rents in respect of the disputed properties from the plaintiff by Issuing rent receipts and as the name of the plaintiff has been recorded in the recent revenue record of rights, if the State is estopped from claiming the land as vested inasmuch as it must be held that the State has recognised the tenancy right of the plaintiff/appellant by such subsequent acts.
7. Mr. Bhattacharya in support of his contentions cited the case of Abdul Hague and Anr. v. State of West Bengal and Ors. , in the said reported decision D. N. Sinha, J. (as His Lordship then was) held that a settlee in whose favour land vesting in the Government by virtue of the West Bengal Estates Acquisition Act, 1953 has been settled at a certain rental, gets a tenancy of some description once the Government accepts rent from him. The fact that the rent receipt contained the expression “without prejudice to the right and title” makes no difference. At best the expression can mean that demise had been made without prejudice to defect of the title in the landlord. Mr. Bhattacharya cited the case of Provash Chandra Mondal and Anr. v. State of West Bengal and Ors. reported in 1977(2) CLJ 246. Sudhamay Basu, J. on consideration of the facts of the said case held that the petitioners were recognised as tenants after mutation of their names in the records and after acceptance of rents by the State Government, they must be deemed to have acquired an independent status apart from their rights as transferees. The case of Panchu Molla v. State of West Bengal and others reported in 1980(2) CLJ page 1 was cited where G.N. Ray, J. (as His Lordship then was) held that when the State Government has mutated the name of the petitioner and accepted rents from him, the State Government cannot treat the said land as a vested land and settle the same to other persons. Even assuming that the right of vendor of the petitioner had vested in the State of West Bengal but because of its subsequent acts it can not turn round and say that the land has vested. It must be held that the State Government has recognised the tenancy right of the petitioner in respect of the land-in-question. Paritosh Kumar Mukherjee, J. in the case of Murari Mohan Mondal v. State of West Bengal reported in 1987(1) CHN 409 followed and relied upon the aforesaid three cases and held that the petitioners could not be dispossessed from the land by treating the land as vested merely because no mutation has been granted in favour of the petitioners when the State has accepted rent from the petitioners. Paritosh Kumar Mukherjee, J. considered the circular of the Board of Revenue concerning the principles for settlement of the land which has been Issued by the State Government and held that even assuming that land stood vested in the State, but as the possession has not been taken in respect of the alleged surplus land from the raiyat and as the State has accepted rent from the subsequent transferees, the transferees became direct tenants under the State and the transferees’ right in respect of such land cannot be interfered with except in accordance with law. A single Judge of the Allahabad High Court in the case of Sheo Narain v. Additional Commissioner, Jhansi Division, reported in 1996 Allahabad Law Journal 195 followed and relied upon the aforesaid decisions of this Court in Abdul Hague (supra) and Panchu Molla (supra).
8. On the strength of the aforesaid decisions Mr. Bhattacharya argued that as the State has admittedly accepted rent from the plaintiff, a tenancy right has been created in favour of the plaintiff and the plaintiff should be treated as direct tenant under the State and on that score only the suit is liable to be decreed.
9. Mr. Himanshu Kumar Basu, learned Advocate, appearing for the State-respondents referred to the decision in the case of Paul Rozario v. State of West Bengal and Ors. reported in 2000(2) CHN page 78 where B.M. Mitra, J. expressed a doubt that the proposition of law laid down in Panchu Molla (supra) may not hold good in view of the tenor of decisions passed by the Supreme Court of India in the case of Shrimati Sawarni v. Shrimati Inder Kaur and Ors. and in the case of Sankalchan Jaychandrabhai Patel and Ors. v. Vithalbhai Jaychandrabhai Patel and Ors. . In the case of Shrimati Sawarni (supra) the facts were like these. On the death of Gurbax Singh and his wife, Gurdeep Kaur, the disputed land devolved upon their two daughters, Sawarni, the plaintiff, and Roori alias Kripal Kaur. The said Roori was not heard of and did not claim any interest in the disputed property. However, it was contended that the plaintiff and the successors-in-interest of the said Roori were entitled to share half and half in the property-in dispute. It was, also, alleged that defendant Nos. 5 and 6 in the said suit without having any interest in the property forciably occupied a portions of the disputed property taking advantage of the absence of the plaintiff from the village. It is also averred that the defendant No. 1 of the said suit claimed to have purchased the property from defendant No. 5, Inder Kaur, who executed the sale deed claiming herself to be one of the daughters of Gurbax Singh. It was contended that the said Inder Kaur was the daughter of Harnam Singh, the brother of Gurbax Singh and not the daughter of Gurbax Singh as alleged by her. The defendant Nos. 1 to 4 and defendant Nos. 5 to 6 filed separate written statements, but in both the written statements it was contended that the land-in-question had been mutated in favour of the plaintiff and the said Inder Kaur which established the rightful ownership of the said Inder Kaur. In the aforesaid background, the Supreme Court of India held that “Mutation of a property in the revenue record does not creat or extinguish title nor has it any presumptive value of title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.”
10. In the case of Sankalchan (supra) the point was whether in view of Section 11 of the Bombay Revenue Jurisdiction Act, there is a bar on entertaining a suit. The said Section 11 provides that no suit is to be entertained unless the plaintiff has exhausted right of appeal. The apex Court held that a reading of Section 11 does not indicate any prohibition on private parties inter se to avail of the remedy of a suit provided under the Code of Civil Procedure; Section 9 of the Code of Civil Procedure does not, expressly or by necessary implications, prohibits the jurisdiction of the Civil Court to entertain the suit based on title. In the aforesaid background the Supreme Court of India held “It is settled law that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and that the right, title and interest, as to the property should be established de hors the entries. Entries are only one of the modes of proof of enjoyment of the property. Mutation entries do not create any title or Interest therein.”
11. It is, therefore, noticed that the observations of the Supreme Court of India have been made in proceedings Inter se private parties. In those proceedings one party sought to assert his/her title against his/her adversary merely on the strength of mutation of his/her name in the revenue record of rights. Therefore, there is distinct note of difference between the cases inter se private parties and the cases where a private party asserts its tenancy right on the strength that the State has mutated his name in the revenue record of rights after the date of vesting and has accepted revenue from him in respect of the land-in-question after the vasting. The collector in discharging his functions as the collector of nent has acted as the agent of the Government as such the State is certainly not entitled to challenge the status of the plaintiff.
12. Unfortunately, B.M. Mitra, J. had no occasion to consider the cases of Abdul Hague (supra), Probhas Chandra Mondal (supra) and Murari Mohan Mondal (supra) and came to the findings that the ratio decided in the case of Panchu Molla (supra) are no longer good law in view of the apex Court’s pronouncement in the said two cases without, however, noticing the distinguishing features. With utmost respect to B.M. Mitra, J, I feel that the doubts expressed by His Lordship is not well placed.
13. I respectfully agree with the earlier views of this Court.
14. Since in the case in hand it is an admitted position that the State has accepted rents from the plaintiff and as the name of the plaintiff has been mutated in the recent record of rights, the State cannot treat the land as vested land as by such subsequent conduct the State has recognised the tenancy right of the plaintiff in respect of the land-in-question.
15. Accordingly, the Judgments and decrees passed by the Courts below are set aside. The suit is decreed. It is declared that the plaintiff has right, title and interest in the suit properties and that the respondents are restrained by a decree of permanent injunction from interferring with the possession of the plaintiff in the suit properties permanently.
The appeal is thus allowed.
There will be no order as to costs.
Xerox certified copies, if applied for, be supplied to the parties on urgent basis.