Gispati alias Gurudas Bhattacharya vs Hrishikesh Santra & Ors.

Sahidullah Munshi, J.

This second appeal at the instance of the defendant/appellant is directed against the judgment and decree passed on 5th May, 1989 in Title Appeal

No.85 Â of 1989, affirming the judgment and decree dated 3rd December, 1987 in Title Suit No. 70 of 1980. By an order dated 10th May, 1990 the

appeal was admitted under Order XLI, Rule 11 of the Code of Civil Procedure by a Division Bench of this Hon’ble Court on ground nos. VII, IX,

X, XXVI and XXVII. The said grounds are as follows :

“VII. For that the learned court of appeal below failed to take into consideration that in view of the provisions of section 14 of the West Bengal

Land Reforms Act, 1955 partition of a holding amongst the co-sharer-raiyats owning it shall be made either by (a) a registered instrument; or (b) a

decree or order of a court.

IX. For that both the courts below committed an error by failing to come to a definite conclusion as to whether there was any oral partition among the

co-sharers that is, defendants 1 to 31 in respect of the disputed property along with other properties.

X. For that the learned court of appeal below should not have believed the plaintiff’s case of oral partition among defendant No.31 and his co-

sharers, particularly when no evidence is forthcoming about the date of alleged partition.

XXVI. For that the learned Court of Appeal below committed and error by not taking into consideration as additional evidence the plaint in T.S. No.30

of 1986 of the Court of Learned Munsif at Danton filed by the plaintiff/Respondent No.1 and others wherein it is pleaded that the properties including

the property mentioned in the suit is still held in a ejmali, Although the defendant/Appellant filed a petition under order 41 rule 27 of the Court of Civil

Procedure to accept the certified copy of the said plaint as additional evidence for reasons stated in clause (1) (aa) of rule 27 of order 41 of the Code

and the documents were filed by firsty.

XXVII. For that the findings of the learned court of appeal below are contradictory and as such the judgment and decree appealed against are not

sustainable in law.â€​

Subsequently, by an order dated 16th November, 2011, a Single Bench of this Court added grounds which are as follows :

1) Whether the Courts below committed a substantial error of law in passing a decree in favour of the plaintiff, when the plaintiff failed to prove his

case of oral partition.

2) Whether the Courts below committed a substantial error of law in holding that in view of the facts found, the suit of its present nature is

maintainable. The said grounds were considered to be additional substantial question of law to be dealt with in this appeal. During pendency of this

appeal, the appellant filed an application under Order XLI, Rule 27 of the Code of Civil Procedure under C.A.N.6476 of 2007 and the same was

allowed vide order dated 20th March, 2012. By the said order the Hon’ble Justice Tarun Kumar Gupta, as His Lordship then was, held that under

the facts and circumstances of the case the appellant/defendant no.32, who lost in both the lower Courts, should be given an opportunity to produce

those documents as per law by way of additional evidence in support of his defence case. It was held that as those documents are public documents

and not private documents, the respondent/plaintiff would get ample opportunity to controvert those documents at the time of adducing evidence to

prove the same. After allowing the said application under Order XLI, Rule 27 His Lordship kept the second appeal pending for final decision. His

Lordship directed the parties to appear before the learned Judge of the lower Appellate Court, namely, learned Additional District Judge, 4th Court at

Midnapore on 9th April, 2012 to receive further order. Learned lower Appellate Court was requested to give opportunity to the appellant/defendant

no.32 to produce and prove those documents being Annexure ‘A’, ‘B’ and ‘C’ of the petition according to law. The

respondent/plaintiffs were given liberty to controvert those documents as per law.

The present appeal arises from Title Suit No.70 of 1980 where appellant before this Court was the defendant no.32 (added defendant). One

Hrishikesh Santra, as plaintiff, filed a suit being Title Suit No.70 of 1980 against Shri Swarup Mahapatra and 36 others for a declaration of title,

recovery of possession or in the alternative, for a decree for indemnity and partition. According to the plaint case, ‘Ga’ scheduled lands

belonged to one Swarup Mahapatra who was the common ancestor of the defendant nos.1 to 31, ‘Ka’ and ‘Kha’ scheduled lands of the

plaint are part and parcel of ‘Ga’ scheduled properties. Swarup died leaving behind three sons, namely, Trailokya, Priyanath and Gopinath.

Gopinath died leaving behind three sons, namely, Jogesh, Jamini and Jatish. Jatish is defendant no.31, Jamini is defendant no.30 and Jogesh being dead,

his legal heirs, defendant nos.19 to 29 were substituted. Defendant nos.1 to 18 are the legal heirs of Trailokya and Priyanath. According to the plaint

case, the said co-sharers got all their joint lands amicably partitioned among themselves and enjoyed the same exercising all sorts of rights including

right of transfer. According to such partition, ‘Ka’ scheduled lands along with other lands fell in the share of defendant no.31. After the

partition, the co-sharers possessed the lands according to their respective shares and the defendant no.31 sold to the plaintiff, the ‘Ka’

scheduled land by a registered deed dated 24.07.1974 for a sum of Rs.5,500/-.

According to the plaintiff, he was in possession of the land since purchase. Since the partition among the co-sharers was not effected by any deed, the

defendant no.31 entered into an agreement with the plaintiff to the effect that if any trouble arose in future in respect of the plaintiff’s title over

‘Ka’ scheduled land, the plaintiff would step into the shoes of the defendant no.31 in respect of ‘Kha’ scheduled lands. According to

plaintiff, it was also settled that there would be an indemnity clause in the sale deed to this effect but on account of negligence of the scribe, the

‘Ka’ scheduled land was not inserted in the indemnity clause. The defendant no.31, however, executed another deed of correction on 14th

Agrahayana, 1382 B.S. admitting the defect in the sale deed. But in the deed of correction also, the scribe, through mistake, omitted to mention the

particulars of the plot in the schedule, although, the same were noted in the recitals. As the plaintiff purchased the suit land from the defendant no.31,

the defendant nos.1 to 30, being displeased with the plaintiff and by denying his title, threatened that they would not allow him to possess the suit land.

By way of amendment, the plaintiff has added an allegation that during pendency of the suit the defendants, in collusion with each other, have

excavated one ‘doba’ in ‘Ka’ scheduled land illegally and have dispossessed him. The defendant no.31 has filed a written statement

where he admitted the plaintiff’s claim.

The suit is being contested by the defendant no.32 only who has made out a case in his written statement that the suit is not maintainable. The suit

land belonged to the predecessor-in-interest of the defendant nos.1 to 31, but the story of amicable partition is denied. The story that the defendant

no.31 had exclusive title and possession over the suit land is also denied. The alleged sale by the defendant no.31 to the plaintiff is collusive, without

consideration and without any legal effect. He has categorically stated that Swarup Mahapatra had a daughter named Haimabati who was mother of

the father of the said contesting defendant. The defendant’s father Bipin Behari Bhattacharya was thus the sister’s son of Trailokya,

Priyanath and Gopinath. Bipin Behari was also the family priest of the Mahapatras and after the death of his father, defendant no.32 used to act as

such family priest of the Mahapatras. The Mahapatras had a family custom of making gift of land to the family priest on the Sradh ceremonies.

Swarup Mahapatra made gift of 2 cottahs of land out of the suit plot Nos.903 and 911 to the family priest Bipin Behari Bhattacharya on each of the

occasions of Sradh ceremony of Trailokya, Priyanath and Gopinath. Similar gift of land out of the two suit plots were also made on other occasions of

Sradh ceremonies to the family priest Bipin Behari Bhattacharya, who in this way got 41 decimals of land in all in the two suit plots and was in

possession of the same through Bargadars. Subsequently, the defendant no.32 has constructed his homestead on plot No.911 and excavated a pond on

plot No.903 for his use.

Defendant nos.1 to 29, who are descendants and legal heirs of Trailokya, Priyanath and Gopinath, contested the suit by filing two separate written

statements one by defendant nos.1 to 18 and the other by defendant nos. 19 to 29. It was the defence of both the sets of defendants is that the suit is

not maintainable and bad for principle of partial partition and non-joinder of necessary parties. It has been alleged by the said defendants that

defendant no.31 had no exclusive right or saleable interest in ‘Ka’ scheduled land and, therefore, the plaintiff did not acquire any right or title or

possession by virtue of his alleged purchase. It is their case that the alleged transfer by the defendant no.31 to the plaintiff is a collusive and sham

transaction.

Learned trial Court framed as many as nine issues and decided the suit on those. On consideration of the oral and documentary evidence, the learned

trial Court declared plaintiff’s title to ‘Ka’ scheduled land and also passed a decree for recovery of possession of the same. Defendant

no.32 was directed to deliver possession of ‘Ka’ scheduled land to the plaintiff within four months, in default, the plaintiff was given liberty to

recover possession through Court. However, plaintiff's prayer for decree for indemnity and partition stood rejected.

While decreeing the suit in the above manner, the learned trial Court dealing with issue nos. 1, 5, 6, 7 and 8 of which issue nos. 5, 6 and 7 are

important and which read as follows : -

“ 5. Has the plaintiff his alleged right, title and interest over the ‘ka’ schedule suit land?

If the plaintiff fails to get decree for ‘ka’ schedule suit land, is he entitled to get any decree in respect of the ‘kha’ schedule suit land as

prayed for?

Is the plaintiff entitled to get any decree for partition of the ‘kha’ schedule lands out of the ‘ga’ schedule lands?â€​

In dealing with the said issues conjointly, the trial Court held that “plaintiff has not been able to adduce good and convincing oral evidence about the

alleged amicable partition.†The learned trial Court, on consideration of the examination-in-chief and cross of the defence witnesses, has further held

that - “All these statements made by him suggest strongs that there was some amicable arrangement or partition under which the co-sharers have

been possessing the lands separately.†The learned Court below, while elaborating the said issues, held that â€" “amicable partition among the co-

sharers holds good until a regular partition by metes and bounds takes place and the co-sharers can validly makes transfers of lands in their separate

possession. So, the case of the plaintiff in respect of the suit plot No.903, is prima facie established.â€​

So far the possession of defendant no.32 over suit land no.911 since 1959 thereby making out a case of adverse possession, has been disbelieved and

further, the trial Court held that the defendant no.32 admitted that there was no paper whatsoever to show that his father got any land by gift or that

his father was priest of Mahapatra family. Accordingly, the learned trial Court held that defendant no.32 has not been able to prove his alleged title

over the ‘Ka’ scheduled land and, therefore, it was held on evidence adduced by the parties that the defendant no.32 has no legal title or

interest in the suit plot No.903 (‘Ka’ scheduled land) but the plaintiff has his title over the same. According to the trial Court, as the title of the

plaintiff over the ‘Ka’ scheduled land is proved, it would also be presumed that he had possession because the defendant no.32 has failed to

prove his possession before the institution of the suit. The learned trial Court, accordingly, held that the plaintiff is entitled to get a decree for

declaration of his title and recovery of possession in respect of ‘Ka’ scheduled land.

The learned trial Court decreed the suit on contest against defendant nos. 1 to 29, 31 and 32 and ex parte against the others. Plaintiff’s title to

‘Ka’ scheduled land has been declared. A decree for recovery of possession in favour of the plaintiff in respect of ‘Ka’ scheduled land

has also been allowed. The defendant no.32 has been directed to deliver possession of ‘Ka’ scheduled land to the plaintiff within four months

from the date of the order, in default, however, the plaintiff would be at liberty to recover possession from Court. The plaintiff’s prayer for decree

for indemnity and partition stood rejected.

Assailing the said judgment and decree passed by the learned trial Court the defendant no.32 filed an appeal being Title Appeal No.85 of 1988. The

Appellate Court affirmed the judgment and decree passed by the trial Court holding, inter alia, that there was amicable arrangement between the co-

sharers and they started possessing the land allotted to their sharers separately. Learned Appellate Court below, while affirming the judgment and

decree passed by the trial Court, held that evidence on record does no tend to prove the case of amicable partition of the suit property between the

defendant no.31 and his co-sharers. On the question of possession of defendant no.32, the learned Appellate Court below also held the same view that

the oral gift in respect of immovable property is unbelievable and there is no evidence of adverse possession adduced by defendant no.32 in this case.

According to the learned Appellate Court below, the suit was filed on 26th May, 1976 and defendant no.32 excavated pond in disputed suit plot

thereafter. Therefore, according to the Appellate Court below, there cannot be any plea for acquisition of title by adverse possession by the defendant

no.32 in respect of the suit plot. Learned Appellate Court below has also subscribed the view of the trial Court that the appellant failed to produce any

document with regard to the gift that he was in possession over the disputed property since 1959. The learned Appellate Court below dismissed the

appeal on contest with cost against the defendant no.32 and ex parte without cost against the rest.

Mr. Roychowdhury, learned senior Counsel appearing for the appellant, has urged that added substantial question of law subsequently framed by the

learned Single Bench on 16th November, 2011, is of prime importance in arriving at a decision in this second appeal. Apart from the questions raised

earlier, Mr. Roychowdhury submitted that when plaintiff files a suit on the plea that his vendor had transferable right, title and interest and thereby he

transferred the suit property claiming that the property so transferred, had been acquired by him in view of the allotment made in his favour by way of

family partition, then question obviously would arise whether the property which has been sold out by the defendant no.31 to the plaintiff was legally

acquired by him and secondly, whether such property was acquired by the defendant no.31 after the family partition was made, if not, then whether

the title acquired by the plaintiff on the basis of the purchase from the defendant no.31 is required to be proved and the onus lies upon the plaintiff to

prove that his vendor had a transferable title and that he has acquired a good right, title and interest over the suit property for which he has prayed for

a declaration. Mr. Roychowdhury submitted that without going into the other aspect of the matter the main controversy in this appeal may be resolved

if the first issue is taken into consideration whether the plaintiff has been able to prove his case or not. From the finding of both the Courts below it

appears that both the Courts have held that there was an amicable arrangement between the co-sharers and due to such amicable arrangement the

suit land was allotted to the defendant no.31 and that by virtue of long possession over the said land, the plaintiff had every authority to transfer the

same in favour of the plaintiff. The Courts below, as indicated earlier, have held that the plaintiff has not been able to prove the oral partition. In a

case where oral partition has not been proved and no documentary proof has been brought on record that the co-sharers got the suit land and other

lands partitioned amongst them by metes and bounds, perhaps learned Courts below were not right to hold that defendant no.31 had acquired absolute

right, title and interest in the suit property. The second limb of argument advanced by Mr. Roychowdhury is that in the written statement the defendant

no.32 has made an alternative case of adverse possession. It is his positive case that he had possession over plot Nos.903 and 911 having his

‘Vastu’ (residential plot) which includes house, pond, toilets and orchards since 1959 with further specific case that he got plot No.903 by gift as

family priest of Mahapatra family. In the written statement the defendant no.32 had made out a case that plot No.911 is situated just on the North of

plot No.903 and he has dug on plot No.911, took mud therefrom and constructed a two-storied building at plot No.903.

So far the story of amicable arrangement considered by the learned Courts below, Mr. Roychowdhury, learned senior Counsel, submitted that plaintiff

is to succeed on the strength of his own case and if he fails to prove his case pleaded in the plaint, the suit is bound to fail and to be dismissed.

Although, this proposition is settled by judicial pronouncements, Mr. Roychowdhury relies on a decision of Privy Council in the case of Jagdish Narain

& Ors. â€" Vs. â€" Nawab Said Ahmad Khan & Ors., reported in 50 CWN 477. The facts leading to the said appeal before the Privy Council as

mentioned in the said decision is as follows :-

“The plaintiffs (who are respondents in this appeal) claimed possession of two-third parts of Muafi property situate in Mauza Bahra Bikram. Their

case was that on 8th January 1842, the Government made a grant of the lands in suit in favour of the heirs of Ahmad Khan, who had married Sayara

Begum the daughter of Nawab Hafiz Rahmat Khan, who had rendered valuable services to the Government which the Government were minded to

reward. The plaint alleged that the grant was made enjoyable in perpetuity generation after generation for the maintenance and help of the heirs of

Ahmad Khan, and that each heir was to hold for life only and on the death of, an heir the next heir of Ahmad Khan was to take as such heir and not

as heir of his predecessor. The plaint further alleged that Ahmad Khan had no male or female issue, and that after his death Mt. Mohammadi Begum

was his heir according to Muhammadan law and entered into possession of his estate.

In the written statement of the several defendants the title of the plaintiffs was denied and it was alleged that Sayara Begum, the widow of Ahmad

Khan, was the absolute owner of the property in suit, and that in 1841 she made a gift of the property to Mohammadi Begum; that in 1854

Mohammadi Begum mortgaged the property, and in 1856 it was sold by the Court in a suit instituted by the mortgagee and was purchased by the

predecessors in title of the defendants, and that the defendants and their predecessors have been in possession of the property ever since.

The Subordinate Judge held that the plaintiffs had proved that they were the heirs of Mohammadi Begum, but that they had not proved that

Mohammadi Begum was the heir of Ahmad Khan, and accordingly dismissed the suit. In appeal the High Court agreed with all the findings of the

lower Court except with regard to the heirship of Mohammadi Begum. The Court held that Sayara Begum, as widow of Ahmad Khan, was one of his

heirs according to Muhammadan law and inherited one-fourth of his property, and that it was not proved that Mohammadi Begum was the heir of

Sayara Begum; but the Court held it proved that Mohammadi Begum was the heir of Ahmad Khan as to the remaining three-fourths of his property

and accordingly they decreed the plaintiffs' suit as to three-fourths of the two-thirds of the property claimed.

The Subordinate Judge had Held that the case of the plaintiffs failed because they had not proved that there were no male collaterals in the male line

of descent or ascent of Ahmad Khan, or of his father, alive at the death of Ahmad Khan and that, as such male collaterals would succeed as heirs

according to Muhammadan law in preference to Mohammadi Begum, the plaintiffs had failed to discharge the burden which rested upon them of

proving their title. The High Court held that this defect in the title of the plaintiffs had not been pleaded by the defendants, and expressed the view that

the Subordinate Judge had made out a case for the defendants which was not foreshadowed in the written statements and was not set up at the trial.

Their Lordships are quite unable to agree with the High Court in this view. The plaintiffs were suing in ejectment, and they could only succeed on the

strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves

when the title was disclosed. It was sufficient that in the written statements the title, avail such defendants denied the plaintiffs' and under this plea

they could themselves of any defect which such title disclosed.â€​

Therefore, on the ratio of the said decision it appears in the present case that the learned Courts below have miserably failed to take into account

whether the plaintiff was able to prove his case of partition when the factum of partition has been clearly denied by the defendants in their written

statement. The learned Courts below, therefore, was not authorized to hold that the defendant could not prove the negative that there was no partition.

On the selfsame issue, Mr. Roychowdhury has also relied on the decisions in the case of â€

• Brahma Nand Puri â€" Vs. - Neki Puri since deceased represented by Mathra Puri & Anr., reported in AIR 1965 SC 1506; and

• Punjab Urban Planning and Development Authority â€" Vs. â€" Shiv Saraswati Iron & Steel Re-Rolling Mills, reported in (1998) 4 SCC 539.

In the case of Brahma Nand Puri (supra) Mr. Roychowdhury drawn attention of this Court to paragraph 8 to show that the Hon’ble Supreme

Court has held : “The plaintiff’s suit being one for ejectment has to succeed or fail on the title that he establishes and if he cannot succeed on

the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property, ...â€​

Placing reliance on Punjab Urban Planning (supra) Mr. Roychowdhury has drawn attention to the observation made by the Hon’ble Apex Court

that taking advantage of witness of the opponent’s case plaintiff cannot get benefit. In the said decision plaintiff, in a suit for specific performance

of contract, is the appellant. The appellant contended that in absence of any evidence on the side of the defendant and more so, when the

defendant’s counter-claim was dismissed, the plaintiff’s suit must have been automatically decreed as prayed for and the partial decree which

was passed by the learned Court below was not adequate on the facts of the case. In this context, the Hon’ble Apex Court held that the appellant

must succeed or fail on his own case and cannot take advantage of the weakness in the opponent’s case to get a decree. Therefore, on this

principle, the Hon’ble Apex Court declined to interfere with the judgment under challenge.

Paragraphs 9, 10 and 11 of the said judgment is important to take note of and those are set out below :-

“9. Ms Rachna Joshi Issar, counsel for the appellant, vehemently contended before us that the trial court as well as the first appellate court ignored

the settled proposition of law that facts admitted need not be proved. According to the learned counsel, in the absence of any evidence on the side of

the defendant and more so when the defendant's counter-claim was dismissed, the plaintiff's suit must have been automatically decreed as prayed for

and the partial decree was not adequate on the facts of this case. Learned counsel again and again laid stress on the terms and conditions set out in

the plaint which have not been controverted in the written statement and also the absence of evidence on the side of the defendant to drive home her

point.

It must be remembered that Exh. P-1 is only an offer made by the appellant/plaintiff, which was preceded by certain correspondence emanating

from the respondent and it can reasonably be presumed that subsequent to Exh. P-1 there must have been some response from the respondent to the

offer of the appellant. All those documents were not placed before the Court to appreciate correctly and completely the transactions between the

parties. Further, as rightly pointed out by the trial court and the first appellate court that Gurdial Singh PW 1 was examined only to prove Exh. P-1 and

he was not in a position to explain the intricacies thereon, in particular, the relevant Condition 2, which relates to supply and return of material. The

language used, namely, “weight to weightâ€, was not at all explained by PW 1. The whole evidence of PW 1 has also not been placed before us.

We are of the view that the lower appellate court was quite justified in observing that the appellant-Board, for reasons best known to it, had not placed

all materials and no effort has been made to explain what according to business terminology was meant by supply of the steel weight to weight. We

cannot take exception to the conclusion taken as above by the lower appellate court. The plaintiff/appellant must succeed or fail on his own case and

cannot take advantage of weakness in the defendant/respondent's case to get a decree.

Therefore, on the facts as found by the trial court and the lower appellate court, we do not think that any question of law arises for our

consideration, as contended by the learned counsel, in this appeal. The appeal fails and is dismissed accordingly with no order as to costs.â€​

From the above cited decisions and the ratio decided therein it is unambiguous that plaintiff, if made out a case of partition in his plaint, must lead

evidence on his pleading and prove the same. In the case at hand, the plaintiff contended that he purchased the property from defendant no.31 and

defendant no.31 acquired good right, title and interest in the suit property by virtue of partition with other co-sharers. It has already been pointed out

that learned trial Court and also the Appellate Court below could not come to a definite finding that defendant no.31 was allotted the suit land in any

partition suit and as an outcome thereof, the plaintiff got absolute right over the suit properties. It is trite law that ancestral properties can neither go

for partial partition, nor can any co- sharer claim absolute title on a portion of the property without having partitioned by metes and bounds. If the

plaintiff pleads that the properties were partitioned by an oral partition then he is required to prove such oral partition. By simply saying that an

amicable arrangement was made and thereby plaintiff acquired transferable right over the suit land, cannot be accepted. Even learned Courts below

could not come to a definite finding that the property underwent partition by metes and bounds. Both the learned trial Court as well as the first

Appellate Court held that there was amicable arrangement with regard to the possession of the suit properties. Therefore, based on such finding, the

decree which has been passed by the Courts below, is not sustainable in law. It has already been settled that if partition is to be claimed then that

partition must be done either by a registered deed in terms of Section 14 of the West Bengal Land Reforms Act or a decree of Civil Court in a

properly instituted suit for partition. None of those elements are available before this Court.

It is also to be considered that amicable arrangement between the co-sharers does not amount to partition. If a party claims that there was an

amicable arrangement of partition, the same should be substantiated by evidence which is hopelessly absent in the present case and the learned Courts

below have shifted the burden on the defendants to prove that there was no partition. In this regard, Mr. Roychowdhury cited two decisions, namely,

• Jolfa Bibi â€" Vs. â€" Ajaladdin & Ors., reported in 29 CWN 229 and

• Sarat Chandra Chattopadhyaya â€" Vs. â€" Ganga Charan Chakravarty, reported in 43 CWN 181

Considering the decision in the case of Jolfa Bibi (supra) Their Lordships in Sarat Chandra Chattopadhyaya (supra) held that a partition for

convenience of possession by itself cannot stand in the way of a decree for partition in a suit so long as it is not found that it was in conformity with

the shares of the respective parties. The share of the defendant no.31 as claimed by him in the present suit and which sought to have been transferred

to the plaintiff, is not his actual share, will be borne out from the evidence adduced by the defendant no.32 by way of additional evidence which I will

discuss later on. The background fact on which the decision came out in Sarat Chandra Chattopadhyaya (supra) the plaintiff sought for declaration of

his right of way and other incidental reliefs with regard to a strip of land forming part of a pathway extending North to South over the homesteads of

the parties. The disputed portion passes through a plot which is the homestead of the defendants and connects a tank which admittedly, is an ejmali

tank of the parties. Plaintiff’s case is that the homesteads were partitioned long ago and since then the co-sharers have been in exclusive

possession of their respective shares. But the disputed pathway, according to the plaintiff, has all along been used by all the co-sharers as a path for

going to the ejmali tank and to the cremation ground to the East of it and they had also been going in procession on occasions of marriage, funeral and

worship. On an obstruction on the part of the defendant no.1, plaintiff brought the suit for declaration of his right to pass through the disputed pathway

with procession, for special damage and in the alternative for a declaration of such right as an undivided owner if it should be found that there was no

partition of the homesteads as alleged in the plaint. Defendant Sree Charan Chattopadhya, in his defence, stated that there has been no partition but

that the different parties are in exclusive possession of the homesteads by amicable arrangement. He admitted that the disputed passage is a pathway

and he stated that the co-sharers are only allowed to use it by permission and they have no prescriptive right, nor any right to take processions. The

Munsif held that there was no partition as alleged in the plaint and that there was no right of easement as claimed in the plaint, it was not being proved

that the pathway had been used as of right for the full statutory period of twenty years. The Munsif further found that there was no easement of

necessity because there is another path by which the tank and the cremation ground could be reached, so the plaintiff had no right of easement over

the disputed land. As regards the alternative prayer of the plaintiff, the Munsif held that the plaintiff was entitled to succeed as an undivided co-owner.

The said judgment was upheld on appeal by the learned Additional District Judge. In a second appeal by the defendant, the decision was reversed by

the lower Appellate Court. In the said decision, ultimately, the Court upheld the Munsif’s decision that the property was undivided property.

A question arises whether after having a concurrent finding of fact by the learned Courts below that the defendant no.31, who sold the land to the

plaintiff, was in occupation of the land by virtue of an amicable arrangement and based on such amicable arrangement he claimed to have absolute

possession and title over the suit land and thereby transferred the same by way of sale in favour of the plaintiff. Once the Courts below come to a

concurrent finding that there has been no partition rather, it was only an amicable arrangement between the co-sharers who possessed the land for

years together, could it not give rise to another question that since the plaintiff has purchased a portion of undivided properties of which defendant

no.31 was only a co-sharer, the plaintiff can only evict the defendant no.32/appellant considering him to be a trespasser from the suit premises

provided he has filed such suit impleading all the co-sharers. Facts leading to the present case are something otherwise and Mr. Roychowdhury has

rightly submitted before the Court two decisions in this respect in the case of â€

• Joy Gopal Sinha & Ors. â€" Vs. â€" Probodh Chandra Bhattacharjee & Ors., reported in 40 CWN 81 and

• Kanakarathanammal â€" Vs. â€" V.S. Loganatha Mudaliar & Anr., reported in AIR 1965 SC 271.

In Joy Gopal Sinha (supra) it has been held that a co-sharer, by himself, cannot get, against a trespasser, a decree for ejectment from the whole of the

land but can only get a decree for joint possession to the extent of his share. He has to work out his further rights by means of a suit for partition,

which element is totally absent in the present case in the background fact narrated earlier in this judgment.

In Kanakarathanammal (supra) the Hon’ble Apex Court held that the trial Court was right in coming to the conclusion that even if the property

belonged to the appellant’s mother, her failure to implead her brothers who would inherit the property along with her, makes the suit incompetent.

It was held that this question had not been considered by the High Court. But since it was a pure point of law depending upon the construction of

Section 10 of the Act, the case was not sent for remand. The Hon’ble Apex Court also did not allow the appellant to amend her plaint by adding

her brothers at the late stage. The appeal before the Supreme Court was dismissed by a majority opinion.

By the discussion hereinabove made, the first substantial question of law formulated on 16th November, 2011 to the effect whether the Courts below

committed a substantial error of law in passing a decree in favour of the plaintiff, when the plaintiff failed to prove his case of oral partition, has been

answered. No further discussion on this issue is necessary.

Now, we shall discuss the petitioner’s alternative defence case made out in the written statement with regard to his possession over the suit land

since 1959 and how such question is related to the second substantial question of law to the effect whether the Courts below committed a substantial

error of law in holding that in view of the facts found, the suit of its present nature is maintainable. I am not unmindful of the fact that this Court

allowed the petitioner’s application under Order XLI, Rule 27 of the Code of Civil Procedure. Despite the plaintiff’s case that he purchased

the property from defendant no.31 and that he obtained possession of the purchased land from defendant no.31, the defendant no.32 continued to

possess the suit land all throughout and in order to establish the same the defendant no.32/appellant, while taking out the application under Order XLI,

Rule 27, annexed a copy of the judgment and decree in a partition suit being Annexure ‘A’. Record-of-Rights published in the name of the

appellant by the Revenue authorities, copy of the order sheet in Title Suit No.223 of 1997 in between Sudhir Kumar Mahapatra and others â€" Vs. â€

Kallol Kumar Mahapatra and others. While allowing the said application under Order XLI, Rule 27, the High Court remanded the matter back and

directed the lower Appellate Court to produce and prove the documents being Annexure ‘A’, ‘B’ and ‘C’ of the application under

Order XLI, Rule 27 of the Code of Civil Procedure in accordance with law. Respondents were given liberty to controvert those documents as per

law. Record reveals that defendant no.32 deposed before the learned Appellate Court below and he was cross-examined by the plaintiff. From the

cross-examination made by the plaintiff it, however, appears that the defendant no.32 deposed on box that his father was a priest, he was also a priest

and he got the land by way of gift from Mahapatras. However, he has no paper or proof to show that his father was a priest or that his father got any

land by way of gift from Mahapatras. He also deposed that the plaintiff filed a Misc. Case against him alleging digging of the pond on the suit land.

He also said that he has not got any land from Mahapatras by way of gift. He deposed that he has interest in the suit land; he has got rent receipts,

chowkidari tax receipt; voter’s list, ration card etc. to show such interest in the land. He has deposed that those gifts were made in 1372 B.S.,

1373 B.S., 1375 B.S. and 1382 B.S. He deposed that he could furnish documents in support of purchase of building materials for construction of his

house on the suit land being plot no.911. On recall on 3rd April, 2013, the DW 1 (present appellant) filed certified copies of Record-of-Rights prepared

by the Block Land and Land Reforms Officer in respect of the suit plot nos. 910, 911 and 903; certified copies of the orders passed in an objection

case initiated under 51A(1) being case no. 582 and the said order was marked Exhibit ‘D’. He also filed Record-of-Rights obtained from the

office of Block Land and Land Reforms Officer in respect of the suit plots being nos. 910, 911 and 903, those have been marked Exhibit ‘E’.

The deponent has also filed certified copy of the order sheet in Title Suit No.223 of 1997 of the Civil Judge (Senior Division), 1st Court, Medinipur

along with final decree of partition suit. Order sheet has been marked Exhibit ‘F’ and the final decree is marked Exhibit ‘F1’. While

cross-examined by the plaintiff, DW 1 said notice to Hrishikesh Santra (the plaintiff) was issued. Exhibit ‘D’ is an order passed by the Block

Land and Land Reforms Officer in the objection Case No.582 filed by the appellant which reflects the possession of the defendant no.32/appellant in

the suit plots for over twelve years.

The said order was never challenged by the plaintiff/respondent till date. However, in the said order the Block Land and Land Reforms Officer, while

allowing the application-cum-objection of the appellant, held that he had a right, title over the suit property having adverse possession since 1973. This

order of the Block Land and Land Reforms Officer was never challenged by anyone. On the basis of the said order revenue records were also

corrected showing the appellant to be ‘Rayat’ in respect of the disputed plots, namely, plot nos. 903, 910 and 911 recorded under Khatian

No.257/1. The order was passed by the Block Land and Land Reforms Officer on 23rd October, 1997. Thereafter, records were corrected. One,

Sudhir Kumar Mahapatra and others, filed Title Suit No. 223 of 1997 for partition of the lands of the Mahapatras including the present suit lands. That

suit was compromised between the parties and a decree on compromise in terms of Solenama was passed. The order-sheet in the said suit has been

marked Exhibit ‘F’ and the final decree passed therein has been marked Exhibit ‘F1’. From the final decree it would appear that the suit

plot no. 903 measuring 0.5 decimal and plot no. 911 measuring 0.16 decimal together with other lands, were allotted in the share of defendant no.31,

Jatish Chandra Mahapatra.

From the partition decree in Title Suit No. 223 of 1997 it appears that a total area of 36 decimal in suit plot no. 903 has been allotted to various co-

sharers. Therefore, on a cursory reading of the said partition decree and the allotment made thereunder, it does not appear that the defendant no.31

had absolute right, title and interest in respect of the suit plots which he could transfer absolutely in favour of the plaintiff. Defendant no.31 cannot

transfer something which he does not own on the day when the transfer was made and the decree in Title Suit No.223 of 1997 is binding on the

present defendant no.31 who was also a party there.

In a second appeal this Court does not wish to give further details about the rights of the parties but on perusal of the evidence on record it is clear

that the land remained un-partitioned and whatever land transferred by defendant no.31 was without authority, at least what he transferred to the

plaintiff, did not belong to him as absolute owner thereof. If any other person has right, title and interest in the said land including that of the defendant

no.32, cannot be shut out in this suit. Therefore, it is yet to decide whether the land claimed to have been purchased by the plaintiff from defendant

no.31 is at all to be considered to be the absolute land of the plaintiff. The alternative case made out by the defendant no.32/appellant that he had

possession over the suit land. Mahapatra family gifted the land to his father. Therefore, his possession over the land was continuing from his father not

from him. In his evidence he said that the land was being possessed for about 17-18 years which has been corroborated by the additional evidence

being the order passed by the Block Land and Land Reforms Officer and further confirmed possession in the Record-of-Rights which was published

subsequent to the said order. Record-of-Rights is a document in support of possession. The Record-of-Rights was published sometime in 1993. Such

document gives rebuttable presumption of possession. Unless evidence is adduced to rebut the said presumption, it will be presumed that the defendant

no.32/appellant was continuing in possession.

As shown in the order of the Block Land and Land Reforms Officer which clearly establishes his acquisition of title through adverse possession is a

fact requires to be considered with its due importance in this appeal inasmuch as these documents were not placed before the Courts below.

Therefore, I have got no hesitation to consider the defendant’s alternative case that his long uninterrupted possession over the said land has been

matured to an adverse possession.

Mr. Bagchi, appearing for the respondent submitted firstly that the suit property was partitioned by the co-sharers and the suit property was allotted in

the share of the defendant no.31 and amicable partition between the co-sharers also acted upon. He submitted that his client filed Title Suit No.70 of

1980 for a declaration, recovery of possession and alternatively partition against the present appellant/defendants. Mr. Bagchi further submitted that

land described in ‘Ka’ and ‘Kha’ schedule of the plaint is part and parcel of ‘Ga’ schedule and entire ‘Ga’ scheduled land

belonged to one Swarup Mahapatra and after his death the property was amicably partitioned amongst his legal heirs. The defendant no.31, Sri Jatish

Chandra Mahapatra, possessed and enjoyed his respective share in the suit property. The defendant no.31 transferred ‘Ka’ scheduled property

to the plaintiff/respondent by executing a registered sale deed on 24.07.1974.

According to the plaint case, plaintiff was in possession of the land since purchase but subsequently, some of the defendants created problem in

respect of separate possession of the suit property and in collusion with each other they excavated a pond during pendency of the suit. Mr. Bagchi

submitted that the contention made by the learned Counsel for the appellant that plaintiff/respondent must prove his own case and could not succeed

on the weakness of the defence case, has got no basis inasmuch as, according to him, it is apparent that the plaintiff has proved his case and the

plaintiff’s evidence was satisfactory. According to him, title of the plaintiff was proved in view of a registered title deed dated 24.07.1974. He

submitted that there is nothing wrong in the decree passed by the learned Court below for 20 decimals of land in ‘Ka’ schedule vide the deed of

sale executed by the defendant no.31. He submitted that in course of argument Mr. Roychowdhury, appearing for the appellant, made a new case of

service tenancy which was neither pleaded, nor proved in the Court below. According to Mr. Bagchi, appellant’s contention that the plaintiff could

not prove amicable partition amongst the co-sharers in respect of the property belonged to the Mahapatra family, is not sustainable as it is apparent

from the judgment of the learned trial Court that there was some amicable arrangements amongst the co-sharers of Mahapatra family. He submitted

that from written statement of defendant nos.1 to 18 and 31 it is absolutely clear that amicable partition was done and all the co-sharers possessed

their respective shares.

Mr. Bagchi submitted that defendant no.4, Anil Kumar Mahapatra, who deposed as DW 3 in his cross-examination, admitted that all the co-sharers

were possessing lands separately by amicable arrangements. Defendant no.32/appellant also stated in the written statement that some undisputed

Southern portion of suit plot no.903 had been transferred by one of the co-sharers to other person. Therefore, according to Mr. Bagchi, factum of

amicable partition or arrangements amongst the co-sharers cannot be brushed aside rather, the same stood proved by the plaintiff on evidence. Mr.

Bagchi submitted that Exhibit ‘F1’ which is the partition decree passed in the subsequent suit in between the parties, would show that the

vendor of the plaintiff, that is, defendant no.31 in the present suit, got the same. He submitted that partition decree of compromise allotting disputed

property, that is, ‘Ka’ scheduled property in the share of defendant no.31 got regularised by a formal partition and plaintiff’s title and

possession are protected under Section 43 of the T.P. Act based on the principle feeding the grant by estoppel. On the Exhibit ‘D’ which was

relied on by the appellant, is the Record-of-Rights. Mr. Bagchi submitted that the Block Land and Land Reforms Officer had no authority to declare

such right holding that the defendant no.32 was in possession of the suit land over 12 years. He submitted that a person claiming adverse possession

cannot file an application or suit for declaration that he has become owner by adverse possession. According to him, adverse possession is a good

defence but it cannot be used as a sword. On this issue he has relied on a decision in the case of Gurudwara Sahib â€" Vs. â€" Gram Panchayat

Village Sirthala & Anr., reported in 2013(4) ICC 756. All subsequent recording in the Record-of-Rights, according to Mr. Bagchi, are void and as

such, no presumption can be raised. He further submitted that all recording and proceedings were made during the pendency of this civil proceeding,

therefore, the same are hit by doctrine of lis pendence. He submitted that appellant/defendant no.32 took steps before the recording authority under

the L.R. Act suppressing about plaintiff’s civil appeal and obtained order of recording which was void ab initio and without jurisdiction. According

to Mr. Bagchi, no evidentiary or probative value of record and entry thereof is attached to the suit property. In this regard he relied on a decision in the

case of -

• Kazi Mohammad Hossain â€" Vs. â€" Sibram Bondopadhyaya, reported in AIR 1967 Cal 10 followed in

• Narayan Chandra Laha & Ors. â€" Vs. â€" Ram Surat Singh & Ors., reported in 2011(3) CLJ (Cal) 334.

Mr. Bagchi submitted that apart from the questions which were formulated at the time of admission of appeal no other questions, as argued by Mr.

Roychowdhury, can be taken note of. According to Mr. Bagchi, the appeal should be dismissed and orders passed by the learned Courts below should

be affirmed.

I have already pointed out earlier that it is the clear concurrent finding of fact arrived at by the learned Courts below that there was no partition

amongst the co-sharers including defendant no.31, who is the vendor of the plaintiff. The learned Courts below mentioned not in one place but in

number of places that there was amicable arrangement between the parties with regard to their respective occupation and/or possession of the land,

therefore, there is a difference between amicable arrangement and amicable partition. If one contends that a property stood partitioned orally, then it is

the bounden duty of the person claiming to have such oral partition to prove that partition. Burden of proof is entirely on the person who claims oral

partition. Such burden, at no point of time, has been shifted to the defendants to prove that there was no partition. Therefore, initial burden lies upon

the plaintiff to prove oral partition. From the findings arrived at by the Court it does not appear that such burden has been discharged by the plaintiff at

any stage of the suit. Therefore, factum of oral partition has not yet been proved. If a party claims that he has acquired title by virtue of registered

deed, question arises whether the party who transferred the property to the plaintiff, had absolute right, title and interest over the property and that too,

whether he had a transferable right or not. From the decision arrived at by the learned Courts below it could not have been asserted that the learned

Courts below decreed the suit holding for a moment that the defendant no.31 had acquired absolute title over the suit property. In my view, thus the

transfer so made by defendant no.31 was not an absolute transfer and which is apparent from the subsequent decree passed by Court which has

come on record by way of additional evidence (Exhibit ‘F1’). Under no circumstance the submission made by Mr. Bagchi that the property had

been partitioned between the co-sharers or that the defendant no.31 had transferable right, title and interest or that the said defendant had absolute

right, title and interest over the ‘Ka’ scheduled property, cannot be accepted. Such contention of Mr. Bagchi that transfer so made by the

defendant no.31/plaintiff is a valid transfer, cannot be accepted. Submission of Mr. Bagchi to the extent that possession and/or title of defendant no.31

has been regularised by the subsequent final decree (Exhibit ‘F1’) can also be not accepted inasmuch as, it is apparent from the said final

decree (Exhibit ‘F1’) that the ‘Ka’ scheduled property was not entirely allotted in favour of the defendant no.31, who transferred the

property to the plaintiff.

The next argument which was made by Mr. Bagchi that entries in the Record-of-Rights so recorded in the name of the defendant no.32, has got no

probative value, also cannot be accepted inasmuch as, this Record-of-Rights gives rebuttable presumption of possession and the defendant no.32 made

out an alternative case of long uninterrupted possession over the suit property by way of defence taken in the written statement. Although, the

presumption of possession is rebuttable but no attempt has been made by the plaintiff to disprove what has been recorded by the Revenue authorities.

Plaintiff was given sufficient opportunity to controvert the case of the defendant no.32 when the order of remand was passed but they never adduced

any independent evidence to prove that the defendant no.32 had no possession over the suit property despite Record-of-Rights was prepared in his

name.

As regards the decision in the case of Gurudwara Sahib (supra) cited by Mr. Bagchi on the issue of adverse possession, in that case plaintiff filed a

suit for a decree to the effect that it had become owner of the suit property by adverse possession. Declaration was also sought to the effect that the

Revenue record showing ownership of respondent No.1 herein i.e. Gram Panchayat (defendant in the suit) is liable to be corrected in the name of the

appellant and the auction already held by the Gram Panchayat of the land in dispute is null and void. Consequential relief of permanent injunction

restraining Gram Panchayat from dispossessing the appellant from the disputed land was also prayed for. This suit was partly decreed by the trial

court granting relief of injunction.

In the said case, the plaintiff sought for declaration in the plaint but in the present case it is by way of defence by the defendant no.32/appellant. So

this decision does not help Mr. Bagchi. The second decision relied on by Mr. Bagchi is in the case of Kazi Mohammad Hossain (supra) on the issue

that Record-of-Rights has got no probative value. The decision is based on a different context. It is no more disputed that Record-of-Rights has got

presumptive value and the presumption of accuracy of the entry in the Record-of-Rights does neither create or extinguish title but only raises a

presumption which again is not conclusive and can be rebutted by evidence.

In our case, the presumption is in favour of the appellant that he was in possession of the land for years together and no less than a period of 12 years.

In the decision referred to by Mr. Bagchi there had been a decision on evidence that there the plaintiff had given possession over the land and,

therefore, question arose whether simple presumption on the basis of subsequent entry made by the Revenue authority can prevail or the same should

be treated to be res judicata. But in the instant case, there has been no such decision by the Civil Court with regard to the fact that the plaintiff would

be able to prove that the defendant no.32 had no possession over the suit property and that apart, while admitting application under Order XLI, Rule

27, fresh evidence was taken which could not be controverted by the plaintiff despite cross-examining the witness for the appellant/defendant no.32.

therefore, the ratio decided in the decision referred to by Mr. Bagchi, has no manner of application in the present case.

However, certain observation made in the said decision in the case of Kazi Mohammad Hossain (supra) is in respect of the case of the appellant

where it has been held that the presumption of accuracy of the entry in the Record-of-Rights does not create or extinguish title but only raises a

presumption which again is not conclusive and can be rebutted by evidence. The presumption of law in favour of accuracy of the entry in the Record-

of-Rights follows from the fact that such record is prepared after due publicity and notifications and upon hearing objectors and interested parties.

Therefore, the entry in the Record-of-Rights which is made after such a prolonged procedure cannot be disbelieved rather, it will be presumed to be

correct until the contrary is proved by evidence. The respondents got ample opportunity to rebut the presumption but failed and/or neglected to do so

and as a result, they should suffer the consequences.

The submission made by Mr. Bagchi that no one can take a plea of adverse possession and no prayer for declaration can be made to that effect. In

my view, perhaps Mr. Bagchi has overlooked the defence case of the defendant no.32/appellant. If Mr. Bagchi’s submission is to be accepted

that only by way of defence, plea of adverse possession can be taken not by way of seeking declaration, perhaps this will lead to a conclusion that the

defence case is nothing other than that. In this case, the defendant has made an alternative plea of adverse possession in his written statement, and,

therefore, there is no bar for taking such a plea. Once such plea is taken by the defendant and he led evidence in support of his long possession it is

the bounden duty of the plaintiff to disprove the fact that he is not in possession. Particularly when this Court gave him the opportunity to lead

evidence to controvert the documents relied on by the appellant before this Court by way of additional evidence, nothing came out from the side of the

plaintiff. Therefore, at this stage, it is too late for Mr. Bagchi to say that defendant has failed to make out a case for adverse possession. If it is not

adverse possession, at least the plaintiff is debarred from seeking any relief to evict the defendant no.32 from the suit property after the period of

limitation.

It is needless to mention that presumption of Record-of-Rights, if not rebutted, though rebuttable, such presumption is not only forward but it should

have a backward effect also. As pointed out by this Hon’ble Court in a decision in Bhabendranath Thakur â€" Vs. â€" Parul Bala Das & Ors.,

reported in (1979) 2 CLJ 44, that in no case a retrospective presumption can be drawn or the entries in a Record-of-Rights. The Court, having regard

to the facts of a particular case and the surrounding circumstances, is entitled to presume both a forward and backward continuity of the said entries.

It has been held that a right of user in the R.S. Records raised a presumption about the existence of a right of way, therefore, it was for the

defendants to rebut the presumption of the correctness of the said entries in the Record-of-Rights.

Mr. Roychowdhury has advanced a proposition that Record-of-Rights not challenged by the plaintiff and subsequent thereto, if rent is accepted by the

State, this will amount to creation of a new tenancy in favour of the appellant, may be considered to be a good and valid proposition of law but I am

unable to accept the same in the context of the present case. Therefore, the decisions cited by Mr. Roychowdhury in the case of Panchu Molla â€

Vs. â€" State of West Bengal & Ors., reported in 1980(2) CLJ 1, Prafulla Kr. Shome â€" Vs. â€" State of West Bengal & Ors., reported in 2002 (3)

CHN 13 and Sudhangshu Mohan Deb (Dead) by LRs â€" Vs. â€" Niroda Sundari Debidhup & Ors., reported in (2004) 4 SCC 389 have got no

manner of application in the present case which relates to intermediary vesting and subsequent auction of the Government by accepting rent and

thereby creation of tenancy arose therefrom.

Lastly, final decree for partition and allotment brought in by the additional evidence show that plot nos. 903 and 911 were not allotted in 16 annas share

to the defendant no.31 (vendor of the plaintiff). Therefore, plaintiff having not acquired 16 annas share in the suit plots, suit was bad in absence of

other co-sharers who had also undivided interests in those plots. The sale by defendant no.31 in favour of the plaintiff was not an absolute sale and,

therefore, plaintiff’s suit is bound to fail having had no absolute title over the said suit plots. Accordingly, the appeal is allowed, judgment and

decree passed by learned Courts below are set aside. Urgent Photostat certified copy of this judgment, if applied for, be given to the learned

advocates for the respective parties upon compliance of all formalities.