Sk. Rabiual Rahaman vs Najma Bibi And Others

The appellant was the defendant in a suit for declaration and recovery of possession in respect of an immovable property.

The case made out by the plaintiffs was that the plaintiffs were the owners of the suit land and the defendants' predecessor had been granted a licence which, naturally, stood revoked upon the death of such predecessor; but the defendants continued to wrongfully retain possession of the suit land. On the basis of the documents exhibited and the oral evidence of the parties, the trial court decreed the suit.

It may do well to notice the defence that was set up by the defendants. In course of the oral testimony of DW-1, he said that he could not remember the number of the case in which his mother's name was mutated in respect of the suit plot nor could he recall the date of the order by which such mutation was allowed. He claimed that he was using the suit property for business and that previously he used to reside thereat with his family. DW-1 specifically claimed that one Malakannessa Bibi gifted the house to Sk. Jaudi. Sk. Jaudi was the predecessor-in-interest of the defendant. The defendant could not produce any deed or other document in respect of his assertion that the property had been gifted to his predecessor.

It is also of some significance that the case of gift made out by DW-1 in the oral testimony was not reflected in the written statement filed by the private defendants. According to the written statement, Sk. Jaudi, a predecessor of the private defendants, was appointed by the plaintiff's mother for household work and given permission to stay in the suit property. It was further pleaded in the written statement that one Ashraf Ali Khan purchased two decimal of land on the northern portion of the suit property from the plaintiff's mother and he constructed a garment shop and he was carrying on business there. The private defendants claimed to be in possession of the balance four decimal of land whereupon they had constructed two rooms of asbestos-sheds with brick walls.

It may also do well to notice that in course of the trial a document was marked as Exhibit-3. Such document was the certified copy of an order dated May 24, 2005 passed by the Block Land and Land Reforms Officer, Debra in Petition Case No.29/2005 rejecting the application made by the private defendants for recording their names in respect of the suit property under Section 7 of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975. It was the specific assertion of DW-1 in his cross-examination that no appeal had been preferred against such order of May 24, 2005 passed in Petition Case No.29/2005.

Despite such being the position and the basis for the decree passed by the trial court, the first appellate court thought it fit to call for a report from the revenue authorities. A report was filed in court accompanied by extracts from revenue records that showed the names of the private defendants or their predecessor recorded in respect of the suit land. This was, clearly, a needless and wholly avoidable exercise undertaken by the lower appellate court. However, since the recording of the name of the private defendants or their predecessor appeared to the lower appellate court to be contrary to the order dated May 24, 2005 passed in the said proceedings under Section 7 of the Act of 1975, further records were called for, which did not materialise.

In the circumstances, the lower appellate court disbelieved the report and the veracity of the records produced by the revenue authorities at the behest of the lower court since the order dated May 24, 2005 stared in the face of the private defendants and it was the admitted position that no appeal had been preferred from such order. In any event, the records produced did not corroborate the case run by the private defendants.

It is submitted by the appellant that since the lower appellate court deemed it necessary to look into the revenue records and discovered the name of the appellant or the appellant's predecessor-in-interest, an opportunity ought to have been given to produce further records to ascertain the circumstances in which the name of the appellant or the appellant's predecessor-in-interest entered the revenue records. The appellant claims that the copy records produced by the revenue authorities along with the report were not tendered into evidence nor was any formal procedure followed in such regard. The appellant suggests that since the lower appellate court found it necessary to call for such records and discovered the name of the appellant or the appellant's predecessor-in-interest therein, the matter had to be followed through to its logical conclusion.

As observed above, it was completely unnecessary for the report or the records to be called for by the first appellate court. It is elementary that an assertion or a defence is assessed on the basis of what is pleaded. What was pleaded by way of defence was that the private defendants were in possession of the suit property as they had been permitted to occupy the same. Also, the case in the oral testimony of DW-1 was that his predecessor was gifted the suit property by the plaintiff's mother. It is the case pleaded in the written statement or the assertion made from the witness box that the private defendants had to prove to be able to ward off the reliefs claimed by the plaintiffs, particularly in the light of the fairly admitted position that the plaintiffs, through their predecessor-in-interest, had title to the suit property. It is equally elementary that a person seeking to claim a right in respect of a property would be the best to know the basis for such right. When the basis for the right as pleaded by the private defendants was found to be non-existent, the accidental adoption of a peculiar procedure by the lower appellate court could not be taken advantage of by the private defendants to establish title by an alternative and wholly undesirable route.

It is recorded that in support of the appellant's perceived rights, Section 51C of the West Bengal Land Reforms Act, 1955 has been cited. However, nothing in such provision prohibits the suit or the reliefs as sought being granted.

Since no substantial question of law has arisen that requires further deliberation or determination, SAT 341 of 2018 is dismissed.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.