1978 (1) TMI 178 - HC - Indian Laws

Summary

Issues Involved:
1. Appealability of an order recording abatement under Section 57-B of the West Bengal Estates Acquisition Act, 1953.
2. Jurisdiction of Civil Courts in matters involving entries in the record-of-rights under Section 57-B of the Act.

Issue-wise Detailed Analysis:

1. Appealability of an Order Recording Abatement:

The principal point of contention is whether an order recording abatement of a suit under Section 57-B of the West Bengal Estates Acquisition Act, 1953, is appealable. There are conflicting decisions on this point. Bhattacharya J. in Amritamay Ghosh v. State of West Bengal held that such an order is appealable, relying on previous decisions like Naimuddin Biswas v. Moniruddin Laskar and Sabitribai v. Jugal Kishore. Conversely, Mookerjee J. in Sideswar Biswas v. State of West Bengal held that an order recording abatement is not appealable but can be challenged under Section 115 of the Civil Procedure Code (CPC).

Under Section 96 of the CPC, an appeal lies from every decree except those passed with the consent of parties. Orders appealable under Section 104 and enumerated in Order 43, Rule 1 of the CPC are exceptions. A decree, as defined in Section 2(2) of the CPC, is the formal expression of an adjudication conclusively determining the rights of the parties. An order recording abatement does not adjudicate the rights of the parties; it is a formal recognition of a fait accompli. Thus, it is not a decree and no appeal lies from it unless it falls under the enumerated orders in Order 43, Rule 1.

The judgment elaborates that an order recording abatement is not an appealable order under Rule 1 of Order 43 of the CPC. It is purely formal, not involving adjudication of the rights of the parties. Therefore, such an order does not meet the definition of a decree under Section 2(2) of the CPC. The court agrees with Mookerjee J.'s view that an appeal does not lie from an order recording abatement under Section 57-B of the Act.

2. Jurisdiction of Civil Courts in Matters Involving Entries in the Record-of-Rights:

The court then examines whether the trial courts were justified in directing the abatement of the suits under Section 57-B of the Act. The suits in question sought declarations of title to disputed property, with one suit also challenging the entries in the record-of-rights.

The court considers the scope of Section 57-B of the Act, referencing Ram Barai Shaw v. Smt. Bibhabati Basak, which held that an entry in the record-of-rights is not proof of title but raises a rebuttable presumption. The Revenue Officer, in preparing the draft record-of-rights, does not decide questions of title but bases decisions on possession in a summary manner. Therefore, the legislature did not intend to exclude the jurisdiction of Civil Courts to decide questions of title.

The court refers to Ayubali Sardar v. Derajuddin Mallick, where it was observed that a suit for declaration of title based on an independent cause of action is maintainable despite adverse entries in the record-of-rights. The court agrees that Section 57-B does not exclude the jurisdiction of Civil Courts to decide questions of title. A suit involving a principal issue of title, even if it challenges the correctness of entries in the record-of-rights, does not fall within the purview of Section 57-B.

The court concludes that trial courts erroneously held that the suits abated under Section 57-B of the Act. The impugned orders are set aside, and the trial courts are directed to dispose of the suits in accordance with the law.

Conclusion:

The impugned orders recording abatement under Section 57-B of the Act are not decrees and are not appealable. However, they are revisable under Section 115 of the CPC. The trial courts erroneously refused to exercise jurisdiction by holding that the suits abated under Section 57-B. The orders are set aside, and the suits are to be disposed of according to the law. Both rules are made absolute, with no order for costs.