Chapala Rani Das vs Jitendranath Chakraborty

Bhaskar Bhattacharya, J.—This second appeal is at the instance of the Plaintiff and is directed against the judgment and decree dated May 31, 1985 passed by the learned Assistant District Judge, Jalpaiguri in Title Appeal No. 7 of 1983 thereby setting aside the judgment and decree dated May 10, 1983 passed by the learned Munsif, Jalpaiguri in Title Suit No. 4 of 1966.

The instant proceeding has a chequered chareer. The Appellant filed the instant suit being Title Suit No. 4 of 1966 in the Court of Munsif, Jalpaiguri for declaration of title, permanent injunction and recovery of possession of part of the suit property.

The case made out by the Appellant was, inter alia, as follows:

a) The disputed land measuring 42 decimals appertains to R.S. Plot No. 431/1397 under R.S. Khatian No. 275/20 Mouza Debagram. It is a part of old C.S. Plot No. 431 measuring 8.08 acres.

b) The C.S. Plot No. 431 formerly belonged to one Lakshmi Saha and her name was recorded in C.S. Khatian. The said Lakshmi Saha died living his son Sudhanlal Saha as her sole heir. In R.S. record of right Sudhanlal Saha''s name was recorded as owner of the disputed property, but in the remark column the name of the Respondent No. 1 appeared as licensee in possession.

c) By a registered sale deed dated December 5, 1960 Sudhanlal sold 11 bighas of land including the disputed R.S, plot to the Appellant. When the Appellant purchased the land she found that the plot was lying fallow and there was no structure on the plot. She constructed two structures on the southern part of the plot measuring about .25 acres for the residence of her adhiar Bonomali BeparJ and on the remaining .17 acres of plot lying in the north, the Appellant''s adhiar Monohar Mandal grew Mesta Jute. Appellant''s name was duly mutated by J.L.R.O. of Rajganj Circle.

d) Taking advantage of the wrong entry in R.S. Khatian, Respondent No. 1 set up Respondent No. 2 as his adhiar and filed application under Sections 107 and 144 of the Code of Criminal Procedure against the Appellant''s husband and her adhiar. In the said proceeding the Southern side of the plot measuring .25 acres was found to be in possession of the Respondent No. 1. Being emboldened by the decision in that criminal proceeding, the Respondent Nos. 1 and 2 tried to take forcible possession of the remaining .17 acres of Sand of plot in dispute. Hence the suit for declaration of title in respect of the entire suit plot for permanent injunction restraining the Respondents for disturbing her possession in respect of .17 acres forming the northern part of the disputed plot and for recovery of possession of .25 acres of land in the Southern part o the suit property.

The Respondents contested the aforesaid suit by filing written statement thereby denykig the allegations made by the Appellant in her plaint. The specific defence of the Respondents was that Sudhanlal transferred all his land in C.S. Plot No. 431 to one Birendra Kumar Dey by way of two lease deeds dated February 13, 1948 and March 27, 1950 respectively and as such the Appellant did not acquire any right, title and interest in the suit property by virtue of her alleged purchase in 1960. The entry in revisional record of right in favour of Sudhanlal was wrong.

The further defence of the Respondent No. 1 was that he was inducted in the suit property by Birendra Kumar Dey under an oral agreement for sale of the suit plot in the year 1948 but the sale deed could not be executed and registered as both the Respondent No. 1 and the said Birendra Kumar Dey left for their respective places of work and could not meet each other. Since 1948 the Respondent No. 1 had been possessing the suit land on paying rent to the landlord, Sudhanlal. It was further alleged that Respondent No. 1 constructed three structures but those were burnt in 1962.

The learned Munsif by his judgment and decree dated September 27, 1967 was pleased to dismiss the aforesaid suit with a finding that by virtue of Exhibits ''F'' and ''F1'' Sudhanlal transferred the entire C.S. Plot No. 431 and accordingly Suchanlal Saha had no saleable interest in the suit property in 1960 and, thus, the Appellant had not acquired any right, title or interest over the suit property by virtue of her Kobala, Exhibit 3. The learned Munsif, however, disbelieved the defence story that the Respondent No. 1 came upon the suit land in 1948 on the basis of oral agreement for sale with Birendra Kumar Dey. He, however, found that the Respondent No. 1 had been possessing the suit land for more than 12 years prior to the date of institution of the suit.

Being dissatisfied with the aforesaid judgment and decree passed by the learned trial Judge the Appellant preferred an appeal being Title Appeal No. 97 of 1967 and the same ultimately came up for hearing before the learned Additional District Judge, Jalpaiguri. The learned Additional District Judge by his judgment and decree dated August 29, 1969 was pleased to allow the said appeal thereby setting aside the judgment and decree passed by the learned trial Judge and remanding the matter back to the learned trial Court for fresh hearing and disposal according to law in the light of the observation made in the body of the said judgment.

The learned First Appellate Court while remanding the aforesaid matter observed that in order to adjudicate the dispute between the parties, a local investigation was absolutely necessary. Therefore, the learned First Appellate Court directed the learned Munsif to give an opportunity to the Appellant for applying for local investigation for the purpose of ascertaining whether the suit plot is included within the land as mentioned in Exhibits F and F1. The learned First Appellate Court further observed that on such local investigation, if it was found that the suit plot was covered by Exhibits F and F1, then the Appellant would'' be out of court; on the other hand if it transpired that the same was not covered by Exhibits F and F1, then the defence of the Respondents would collapse. By the aforesaid order of remand the learned First Appellate Court directed the learned trial Judge to dispose of the suit afresh on the basis of the Commissioner''s Report, if any, evidence on record and other evidence that may be adduced by the parties.

After the afore aid order of remand the Appellant filed an application for amendment of plaint thereby deleting the prayer for permanent injunction and incorporating the prayer for recovery of possession of entire 42 decimals of land. The said application for amendment was allowed. The Appellant also prayed for appointment of an Advocate Commissioner. Accordingly, the learned trial Judge appointed the Surendra Kumar Dasgupta, an Advocate to ascertain; (1) the area, location and situation of the suit land, (2) whether the suit plot or any part thereof fell within the lands covered by documents marked as Exhibits F and F1 upon relayment of those documents. (3) if the suit plot was covered by the aforesaid documents in part, to indicate the area and location thereof, (4) to draw the case map at appropriate scale showing therein the result of the investigation.

The learned Advocate Commissioner in terms of the aforesaid direction submitted a detailed report thereby locating the suit plot, and further holding that no portion of the suit plots fell within the land covered by document marked Exhibits F and F1. The learned Commissioner further drew a map showing the details of his investigation.

It appears from the record that the learned Advocate Commissioner was also examined and cross-examined by the parties and subsequently his report was accepted.

Thereafter the learned Trial Judge by the judgment and decree dated May 10, 1983 was pleased to decree the aforesaid suit thereby declaring the Appellant''s title in respect of the suit land and passing a decree for recovery of possession of the suit property. The learned Trial Judge while arriving at such conclusion relied upon the report of the learned Commissioner.

Being dissatisfied with the aforesaid judgment and decree passed by the learned Trial Judge, the Respondent No. 1 preferred an appeal being Title Appeal No. 7 of 1983 and the same came up for hearing before the learned Assistant District Judge, Jalpaiguri. By the judgment and decree dated May 31, 1985 the learned Assistant District Judge was pleased to set aside the judgment and decree passed by the learned Trial Judge and to dismiss the Appellant''s suit.

While allowing the said appeal the learned First Appellate Court totally ignored the Commissioner''s report on local investigation and arrived at his own finding that the boundary of the plots covered by Exhibits F and F1 was definite and the area covered within the boundary lines of these exhibits could not but be plot No. 431.

Being dissatisfied with the aforesaid judgment and decree passed by the learned First Appellate Court below the Plaintiff has preferred the instant second appeal.

Mr. Roy; the learned Senior Advocate appearing on behalf of the Appellant has submitted before me that the finding of the First Appellate Court that the lands covered by exhibits F and F1 which are none other than entire plot No. 431 was patently illegal. According to Mr. Roy, the boundary mentioned in exhibits F and F1 will clearly show that by virtue of Exhibits F, 20 bighas of land within C.S. plot No. 16/299, 16/431 and 16/432 under C.S. Khatian No. 865 of Mouza Debagram was transferred. According to Mr. Roy, Exhibit F1 also shows that 1.33 acres under C.S. Khatian No. 865/1 being part of C.S. Plot No. 16/431 of Mouza Debagram was transferred. Mr. Roy further submits that the learned Advocate Commissioner after a detailed inquiry arrived at a specific conclusion that suit plot is not covered by Exhibits F and F1 and as such the defence of the Respondents that by virtue of Exhibit 3 Appellant acquired no title to the suit property cannot stand and thus the learned Munsif rightly passed a decree for declaration of title and covery of possession in respect of the suit property.

Mr. Dasgupta, the learned Senior Advocate appearing on behalf of the Respondents has made the following submissions.

The first contention of Mr. Dasgupta is that even if the Respondents had failed to prove that the suit property was covered within Exhibit F and F1, no decree for declaration of title and recovery of khas possession can be granted in favour of the Appellant unless Plaintiff/ Appellant proves title to the suit property. In support of such contention Mr. Dasgupta has relied upon a decision of the Supreme Court in Brahma Nand Puri Vs. Neki Puri,

The second contention of Mr. Dasgupta is that in the revisional record of right the possession of the Respondent No. 1 having been shown, it carries a presumption of correctness. In the instant case, according to Mr. Dasgupta, the Appellant has failed to rebut the said presumption. Mr. Dasgupta contends that at the time of vesting under provision of West Bengal Estate Acquisition Act, 1953, the vendor of the Appellant being out of possession and the land being in possession of a third party, the vendor of the Appellants had no right to retain the said land and as such the vendor of the Appellant or the Appellant herself has no right to file a suit for recovery of possession. In support of such contention Mr. Dasgupta relied upon the decisions Gurucharan Singh Vs. Kamla Singh and Others, Jagannath Prosad and Ors. v. Gati Unai 1981 (1) C.H.N. 159 and Benode Behari Ghosal v. Shew Kamal Singh 1983 (1) C.L.J. 340.

Mr. Dasgupta further contends that initially the learned Trial Judge having found possession of the Respondents in the suit property for more than 12 years prior to the institution of the suit, and in the absence of any fresh finding as regards possession of the parties on the date of vesting, no decree for recovery of possession can be passed in favour of the Appellant.

Mr. Dasgupta relied upon a decision in Mohan Lal Vs. Anandibai and Others, in support of his contention that if a decision is set aside by the appellate court and the matter is remanded back it does not necessarily imply that all the findings recorded by the iearned trial Judge has been set aside.

After consideration of the entire materials on record I find substance in the submission of Mr. Roy. It appears from the report of the learned Advocate Commissioner that he, after detailed investigation, has located the suit plot and has also located the land covered by Exhibits F and F1. A map has also been prepared showing the detairs of the plot numbers of the land covered by Exhibits F and F1 and also the suit property. From the aforesaid report it is clear that the suit property does not fall within exhibits F and F1. The finding of the learned First Appellate Court that Exhibits F and F1 covered the entire plot No. C.S. 431 is on the face of it erroneous as will appear from the document itself. As indicated earlier Exhibit F contained 20 bighas of land out of C.S. Plot Nos. 16/299, 16/431 and 16/432. The total area of C.S. Plot No. 431 is not in dispute. Thus, the finding of the First Appellate Court that entire C.S. Plot No. 431 was within Exhibits F and F1 cannot but be called as perverse. In this case the learned Advocate Commissioner was examined and cross-examined. It appears that no defect could be pointed out as to the manner of investigation conducted by the learned Advocate'' Commissioner. It is now well settled that interference with the result of a long and careful local investigation except upon clearly defined and sufficient ground is to be deprecated. It is not safe for a court to act as an expert and to overrule the report of Commissioner where integrity and carefulness are unquestioned. On perusal of the report filed by the learned Advocate Commissioner it would appear it is a well reasoned report and the learned Advocate for the Respondents could not draw my attention to any defect or mistake committed by the learned Advocate Commissioner in arriving at such report. Therefore the learned First Appellate Court below erred in law in rejecting the said report notwithstanding fact that there was no mistake or error on the part of the learned Advocate Commissioner in holding the investigation or in the report itself based on such investigation.

Let me now consider the submissions made by Mr. Dasgupta on behalf of the Respondents. There is no dispute with the proposition that in a suit for declaration of title and recovery of possession, merely because the Defendant has failed to prove title over the suit property no decree can be passed in favour of Plaintiff unless his title to the suit property is established. In the instant case, there is no dispute that Sudhanlal was the original owner of the suit property. It appears from the revisional record of right that Sudhanlal''s name has been recorded as owner of the suit property. The specific defence of the Respondents was that the suit property had already been transferred by Sudhanlal in favour of Birendra Kumar Dey by Exhibits F and F1 and as such in 1960, at the time of execution of Exhibit 3 in favour of the Plaintiff, he had no saleable right. As already indicated, once it is established that the suit property is not covered by Exhibits F and F1, I am left with no other alternative but to hold that by virtue of Exhibit 3, the Appellant had acquired valid right, title over the suit property. As regards possession, Mr. Dasgupta strongly relied upon the entries made in the record of right. In the revisional record of right, the Respondent No. 1 has been shown to be a licensee under Sudhanlal. It goes without saying that the Respondent No. 1 has not put forward any case that he was a licensee at any point of time under Sudhanlal. There is also no iota of evidence to show that Sudhanlal ever inducted the Respondent No. 1 as licensee in the suit land. Therefore, it is apparent that there was no foundation of such entry and as such the said entry is wrong. The Respondent No. 1 alleges that he has been possessing the suit land on the basis of an oral agreement for sale made between himself and Birendra Kumar Dey in 1948. In cross-examination the said Birendra Kumar Dey as D.W.1 said that at the time of oral agreement he got Rs. 300.00 from Respondent No. 1 but the Respondent No. 1 stated he gave not only Rs. 300.00 but also Rs. 50.00 more. In Exhibit E, it is mentioned that Rs. 50.00 was paid on the date of execution of the same. But D.W. 1 categorically said that at the time of execution of Exhibit E no amount was paid. The Respondent No. 1 further stated that on receiving Rs. 300.00 Birendra Kumar Dey granted him a receipt which was lying in his house. It goes without saying that the said receipt has not been filed by the Respondent No. 1. The Respondent No. 1 has filed two receipts being Exhibit A2 and Exhibit A3 alleged to have been granted by Sudhanlal in favour of Respondent No. 1. The evidence shows that Sudhanlal used to keep counter foil of rent receipts. In the absence of those counter foils no reliance can be placed upon those Exibits particularly when he has subsequently claimed title to the suit property by virtue of Exhibit E executed on July 14, 1965 by Birendra Kumar Dey where Sudhanlal figured as covendor. Once it is established that the suit land was not covered by exhibits F and F1, Birendra Kumar Dey cannot convey title of the suit property to Respondent No. 1. Furthermore, Sudhanlal also cannot transfer the suit property in 1965 when in 1960 by virtue of exhibit 3 he had already transferred the suit property in favour of Appellant. The Respondents tried to make out a case of fraud in the matter of execution of Exhibit 3 but at the time of hearing such a plea was not pressed. The Plaintiff after her purchase mutated her name in the office of J.L.R.O. and paid taxes. [Exhibit 1 (series)]. Exhibit-2 is the notice issued by the office of J.L.R.O. before mutation of the Plaintiff''s name. The Dakhilas filed by the Appellant show that she paid rent to the government in the year 19(54. All this exhibits prove possession of the Appellant after her purchase. Therefore, having acquired valid title to the suit property in the year 1960 the Appellant can very well maintain a suit for recovery of possession in the year 1967 on the basis of his title and earlier possession. Therefore, the contention of Mr.. Dasgupta that the Appellant has failed to prove title over the suit property is without any basis and as such the aforesaid decision in Brahma Nand Puri v. Mathra Puri and Anr. (Supra) has thus no application to the fact of the present case.

Once it is established that the entry in the revisional record of right regarding permissive possession in the Respondent No. 1 under Sudhanlal was erroneous having no basis, the argument advanced by Mr. Dasgupta that Sudhanlal being out of possession on the date of vesting, the Appellant is not entitled to maintain the suit for recovery of possession has got no force. As indicated above there is no foundation of the entry in the revisional record of right showing permissive possession of Respondent No. 1 under Sudhanlal. Moreover, once I disbelieve the case of oral agreement entered into by the Respondent No. 1 and Birendra Kumar Dey in the year 1948, the case of the Respondent No. 1 that he was in possession of the suit property from 1948 fails. It will not be out of place to mention that D.W.1 in his evidence admitted that the Respondent No. 1 was posted at Kurseong from 1945 to 1949 and he again reported at Siliguri in the year 1960-61. Although there was no specific finding recorded by the First Appellate Court as regards the date of dis-possession of the Appellant, by virtue of the power vested in me by Section 103 of the Code of Civil Procedure, I have gone through the entire evidence on record and I am of the opinion that the Respondent No. 1 had failed to prove the oral agreement for sale and induction in the suit property on the basis of such agreement. Exhibit (1) Series and Exhibit-2 clearly indicate, as I have noticed earlier, that after purchase the Appellant mutated her name an paid rent to the State. The aforesaid documents support the case of possession of the Appellant in the suit property after her purchase. Therefore, from the materials on record it is clear that the Plaintiff/Appellant was dis-possessed from the suit property after her purchase of the suit land and as such the suit filed in the year 1967 was maintainable: Both the submissions advanced by Mr. Dasgupta are thus devoid of any merit.

Therefore, on consideration of the entire materials on record, in my opinion, the learned First Appellate Court erred in law in reversing the judgment and decree passed by the learned Trial Judge and, thus, I set aside the judgment and decree passed by the First Appellate Court and restore those passed by the learned Trial Judge.

The appeal is allowed but in the facts and circumstances of the case there will be no order as to costs.