Saidul Mallick @ Saidul Haque Mallick & … vs Sk. Fazlul Haque & Ors on 7 March, 2025

Calcutta High Court (Appellete Side)

Saidul Mallick @ Saidul Haque Mallick & … vs Sk. Fazlul Haque & Ors on 7 March, 2025

Author: Hiranmay Bhattacharyya

Bench: Hiranmay Bhattacharyya

D/L- 28
07/03/2025

Ct. No.-6
Aritra C.O. 817 of 2025
Saidul Mallick @ Saidul Haque Mallick & Ors.

Versus
Sk. Fazlul Haque & Ors.

Mr. M.A. Samad
…for the petitioner

This application under Article 227 of the

Constitution of India is at the instance of the defendant

and is directed against an order being No.99 dated

January 14, 2025 passed by the learned Civil Judge (Sr.

Div.), Serampore, District-Hooghly in Title Suit No.60 of

2011 which has been subsequently re-numbered as Title

Suit No.545 of 2013.

By the order impugned the application under Order

7 Rule 11 of the Code of Civil Procedure stood rejected.

The learned advocate appearing for the petitioner

submits that the suit is barred by the provisions of Section

14X read with Section 51C of the West Bengal Land

Reforms Act.

Section 14X of the 1955 Act deals with bar of

jurisdiction of civil courts. It states that no civil court shall

have jurisdiction to decide or deal with any question or to

determine any matter which by or under the said chapter

is required to be decided or dealt with or to be determined

by the revenue officer or other authority specified therein

and no orders passed or proceedings commenced under
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the provisions of the said chapter shall be called in

question in any civil suit.

After going through Section 14X of 1955 Act this

Court finds that the civil court’s jurisdiction is barred only

in respect of the matters which the revenue officer is

authorized to decide and deal with under Chapter IIB of

the West Bengal Land Reforms Act. Chapter IIB deals with

ceiling on land held by a riayat. After reading the plaint as

a whole this Court is of the considered view that the issues

which the revenue officer is authorized to deal with under

Chapter IIB of the 1955 Act is not the subject matter of the

instant suit.

Section 51C of the 1955 Act states that when an

order has been made under sub-section (1) of Section 51

directing revision or preparation of a record of rights, no

civil court shall entertain any suit or application for the

determination of revenue or the incidents of any tenancy to

which the record of rights relates and if any suit or

application in which any of the aforesaid matters is in

issue is pending before a civil court on the date of such

order, it shall be stayed and it shall, on the expiry of the

period prescribed for an appeal under sub-section (5) of

Section 51A or when such an appeal has been filed under

that sub-section as the case may be, on the disposal of

such appeal, abate so far as it relates to any of the

aforesaid matters.

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In the instant suit the plaintiff/opposite party

herein has not called in question the determination of

revenue or the incidence of any tenancy to which the

record of right relates. The instant suit is a suit for

declaration, partition and for other consequential reliefs.

From a bare reading of the statements made in the plaint it

does not appear to this Court to be barred under the

aforesaid provisions of the 1955 Act.

In course of hearing of this application the learned

advocate appearing for the petitioner submits that prayer

(d) and (e) of the plaint is barred under Section 14X and

51C of the 1955 Act. In prayer (d) of the plaint the

plaintiff/opposite party has prayed for a decree declaring

that the forcible possessors had or have no salable right to

transfer the said property. In prayer (e) the

plaintiff/opposite party has prayed for a decree declaring

that the sale deed for the year 2022 in the name of the

defendant No.2 as well as the deed of Sk. Sarabuddin are

void, illegal and not binding upon the plaintiff and the

defendant No.1. The fact as to whether the forcible

possessors had or have no salable right to transfer the

property and as to whether the deeds are void, illegal and

not binding upon the plaintiff and the defendant No.1

cannot be decided by the revenue officer under the

provisions of the West Bengal Land Reforms Act, 1955 but

it falls within the jurisdiction of Civil Courts under Section
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9 of the Code of Civil Procedure and does not fall within

the exception carved out in Section 9 of the Code.

The learned advocate appearing for the petitioner

further submits that the instant suit is barred under the

provisions of Section 34 of the Specific Relief Act as the

plaintiff has not prayed for recovery of possession when it

has been specifically admitted in the plaint that the

plaintiff is not in possession of the suit property.

After going through the plaint more particularly

paragraph 2 thereof this Court finds that it has been

specifically stated that the plaintiff after purchasing the

said property immediately took possession of the same and

have applied for mutating his name in the revenue records.

A plaint shall be rejected under Order 7 Rule 11 of

the Code of Civil Procedure where the suit appears from

the statement in the plaint to be barred by any law. Since

in the plaint it has been specifically stated that the plaintiff

is in possession of the suit property, this Court is of the

considered view that the bar under proviso to Section 34 of

the Specific Relief Act does not stand attracted to the case

on hand.

The learned advocate appearing for the petitioner

further submits that the name of the petitioners have been

duly recorded in the revenue records and the record of

rights being a document of possession which carries a

presumption of correctness, this Court is to consider that
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the plaintiff is not in possession of the property in

question.

It is well-settled that while considering an

application under Order 7 Rule 11 of the Code only the

statements made in the plaint is to be considered and the

defence case as well as the documents in support of the

defence case cannot be looked into at the time of

considering the prayer for rejection of the plaint. That

apart, though there is a presumption attached to the

record of rights but the same is a rebuttable presumption.

The dispute, if any, as to possession of an immovable

property has to be decided in the suit by trial or evidence.

In view thereof, this Court is not inclined to accept

the contention of the learned advocate for the petitioner

that the merely because the name of the defendant is

recorded in the record of rights the plaintiff is not in

possession of the suit property.

The learned Trial Judge took note of the points

raised by the petitioner in the application under Order 7

Rule 11 of the Code and after considering each and every

points raised therein, the learned Trial Judge rejected the

application under Order 7 Rule 11 of the Code by

assigning cogent reasons in support of the ultimate

conclusion.

This Court is, therefore, not inclined to interfere

with the order impugned. However, the cost imposed upon

the petitioner by the order impugned stands deleted.
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With above observations and directions CO 817 of

2025 stands dismissed.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties upon compliance

with all requisite formalities.

(Hiranmay Bhattacharyya, J.)