Sri Debidas Mondal vs Maya Bhowmick

Jyotirmay Bhattacharya, J.—This second appeal is directed against the judgement and decree dated 19th December, 2015 passed by the learned Additional District Judge, Fast Track Court No. 3, Barrackpore, North 24-Parganas in Title Appeal No. 19 of 2012 affirming the judgement and decree dated 20th January, 2012 passed by the learned Civil Judge (Junior Division), Barrackpore in Title Suit No. 137 of 2001 at the instance of the defendants/appellants.

Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not.

The original plaintiff filed a suit for declaration of his title in respect of the suit property and for permanent injunction for restraining the defendants from disturbing his peaceful possession in the suit property. The original plaintiff claimed that Abul Hossain was recorded as raiyat in the C.S. record of rights. He became the raiyat in respect of the suit property by virtue of a registered patta being exhibit-1. The original plaintiff became raiyat in respect of the suit property by virtue of purchase of the suit property from the said recorded owner thereof through a registered kobala dated 13th February, 1974. The said deed of kobala was registered by the constituted attorney of the said Abul Hossain viz. Pir Mohammed and Asgari Begum daughter of Amjad. He claimed that since the time of purchase of the suit property, he has been possessing the suit property. Since his possession was disturbed by the defendants, he filed the said suit before the learned Trial Court.

The defendants appeared in the said suit and contested the same by filing written statement. They made a rival claim for title over the suit property on the basis of an oral settlement of the suit property by the said Abul Hossain. The defendants claimed that the name of the original defendant was also recorded in the R.S. record of rights as korfa tenant. The khajna receipt granted to them against the payment of revenue they made to the State authority has also been produced.

The present appellants are the substituted heirs of the original defendant. The respondents are the substituted heirs of the original plaintiff. The parties led evidence in support of their respective claims in the said suit. After considering the pleadings of the parties and their evidence, the learned Trial Judge ultimately dismissed the said suit on contest by holding inter alia that the plaintiff has failed to prove his possession in respect of the suit property and the suit is barred under Section 34 of the Specific Relief Act as the plaintiff has not prayed for recovery of possession in the suit property.

Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned first Appellate Court. The learned first Appellate Court was pleased to set aside the decree of the learned Trial Court and remanded the suit back to the learned Trial Court for reconsideration by giving liberty to the plaintiff to lead further evidence with regard to his claim for possession in the suit property.

After the suit was sent back to the learned Trial Court on remand, the plaintiff led further evidence. However, he filed an application for amendment of the plaint seeking a decree for recovery of possession in the suit property from the defendants. Such prayer for recovery of possession having been allowed, attained its finality.

After remand, the learned Trial Court was pleased to hold that the plaintiff has succeeded in proving his title in respect of the suit property. Accordingly, his title was declared in respect of the suit property and the decree for recovery of possession was also granted as the learned court found that the plaintiff failed to prove his possession in the suit property and the defendants, in fact, are in possession therein. The defendants were permitted some time to vacate the suit premises peacefully. In default, plaintiff was granted liberty to execute the said decree for recovery of possession.

Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the defendants preferred an appeal before the learned first Appellate Court.

The learned first Appellate Court also concurred with the findings of the learned Trial Judge and dismissed the appeal by holding that the plaintiff�s title is proved and as such he is entitled to get a decree for recovery of possession. The instant second appeal is directed against the said judgement and decree of the learned first Appellate Court.

We have heard Mr. Banerjee, learned senior counsel appearing for the defendants/appellants. We have considered the judgements and decrees of both the courts below including the pleadings of the parties as well as their evidence.

Mr. Banerjee strenuously argued before us that both the courts below ought to have dismissed the suit, as the plaintiff even after remand could not prove his possession in respect of the suit property in terms of the order of remand. He also submitted that since the plaintiff could not establish his possession right from the date of his purchase i.e. 13th February, 1974, the courts below ought to have held that the suit for recovery of possession filed by the plaintiff in 1974 was barred by limitation. According to him Article 64 of the Limitation Act will govern the present case and since the plaintiff has not filed the said suit for recovery of possession within 12 years from the date of his dispossession, the suit is barred by limitation.

Mr. Banerjee further contended that since the name of the predecessor-in-interest of the defendants/appellants was recorded as korfa tenant in respect of the suit property in the finally published revisional record of rights, the defendants/appellants were not required to prove the foundation of such recording. According to him, if the correctness of such recording in the finally published revisional record of rights is challenged by the plaintiff, the plaintiff is required to prove the same by following the well settled principle of law that in case of conflict between the C.S. record of rights and the revisional record of rights, the entries in the revisional record of rights which is published subsequent to the C.S. record of rights will prevail.

Let us now consider as to how far such contention of Mr. Banerjee, learned senior counsel can be accepted in the facts of the instant case.

We cannot join any issue with Mr. Banerjee on the settled principle of law that the entries in the finally published record of rights carries presumption of correctness and in case of conflict between the entries made in two record of rights, the entries in the later record of rights which is finally published will prevail over the other and it is he who will challenge the correctness of such recording in the later finally published record of rights, will have to prove the foundation of correctness of the recording in the earlier record of rights. We accept this principle of law which was argued by Mr. Banerjee.

Let us now consider as to how far the plaintiff succeeded in rebutting the presumption attached to the entries in the later finally published record of rights.

In order to prove that the recording in the earlier finally published record of rights i.e. C.S. record of rights is correct, the plaintiff has produced a registered patta being exhibit-1 on the basis of which the name of the original owner through which the plaintiff is claiming title over the suit property as raiyat. He has also proved the registered sale deed dated 13th February, 1974 through which he is claiming title over the suit property from the said recorded raiyat viz. Abul Hossain and Asgari Begum. The said deed was admitted into evidence on proof thereof and was marked as exhibit-4. The said deed was executed by one Pir Mohammed being constituted attorney of Abul Hossain. The said power of attorney was also admitted into evidence and was marked as exhibit-5. The khajna receipts (rent dakhilas) being exhibit-2 and exhibit-6 to 6C were also admitted into evidence on proof thereof by the plaintiff to substantiate that the State authority has also realised revenue from those recorded owners by admitting their title in the suit property.

On the contrary, the defendants claimed their title over the suit property on the basis of an oral settlement taken from the said Abul Hossain. Such oral settlement was disbelieved by the learned courts below by relying upon the provision of Section 48 of Bengal Tenancy Act which provides that the rent or rate of rent (of an under Rayat) agreed upon shall not be less than the rent or rate of rent payable by the Rayat to his landlord.

The agreed rate of rent payable by Abul Hossain was Rs. 6/- per annum. The defendants claimed that in terms of the said oral settlement, the predecessor-in-interest of the defendants/appellants was required to pay rent @ Rs. 3/- only. These create a suspicion in the mind of the courts below about the genuineness of the oral settlement allegedly given by Abul Hossain in favour of predecessor-in-interest of the appellants viz., Dhirendra Nath. Since the plaintiff founded his claim for title over the suit property on the basis of such oral settlement and further since such oral settlement was disbelieved by the courts below, we hold that the defendants failed to prove their title merely by producing some rent dakhilas without proving the primary document of title. We, thus, find that the plaintiff has succeeded in proving the correctness of the recording in the C.S. record of rights and hold that the recordings in the revisional record of rights which are contrary to the recordings of the C.S. record of rights are erroneous and baseless. We, thus, cannot disagree with the findings of the learned courts below on the issue relating to title of the plaintiffs over the suit property.

Let us now consider as to whether the suit is barred by limitation as contended by Mr. Banerjee.

Here is the case where we find that the plaintiff has not claimed any decree for recovery of possession based on his prior possession over the suit property. Had it been a case for recovery of possession of the suit property based on his prior possession, then Article 64 of the Limitation Act could have applied. Since this is not a suit for recovery of possession based on the prior possession of the plaintiff, Article 64 will not apply. In our view, Article 65 of the Limitation Act is the appropriate provision which governs the field of limitation so far as the suit is concerned as the plaintiff has prayed for a decree for recovery of possession based on his title. Here is the case where we find that the defendants have not claimed title by adverse possession. As such, we hold that the suit is not barred by limitation as Article 65 of the Limitation Act says that the suit for recovery of possession of immovable property based on title is required to be filed within 12 years when the possession of the defendants become adverse to the plaintiff. Thus, we cannot agree with the submission of Mr. Banerjee that the suit is barred by limitation.

In the facts of the present case, we do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed.

Re: CAN 5092 of 2016 (Injunction):

Since we have not admitted the appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for injunction. The said application being CAN 5092 of 2016 is, thus, deemed to be disposed of.