B. PENIGRAHI, J. ( 1 ) -THE defendants being aggrieved by and dissatisfied with the judgment and decree dated 21st February and 3rd March, 1975 respectively passed by the learned District Judge, Malda in O. C. Appeal No. 19/74 affirming the judgment and decree dated 30th March and 26th March, 1974 passed by the Munsif, 2nd Court, Malda have preferred the instant appeal. The facts of the case as set out in the judgments passed by the courts below briefly stated as follows:- ( 2 ) THE father of the respondents (hereinafter be referred to as plaintiff) Narendranath Chowdhury took settlement of the suit land at an annual rental of Rs. 2/- from the Zamindar Abut Hayat Khan Chowdhury and others, and erected structures on the suit land, morefully described in the schedule attached to the plaint. From then on, the plaintiffs father Narendranath Chowdhury started living in the suit house. He executed a registered a Kabuliyat in favour of the landlord on 27th Agrahayan, 1361 B. S. The erstwhile landlord filed a title suit in T. S. 199/59 in the Court of the 1st Munsif, Malda against Narendranath Chowdhury for eviction from the suit premises against Narendra. But the said suit, however, was dismissed on contest. Being aggrieved by the judgment and decree passed by the Trial Court the landlord filed an appeal but the appellate court had also affirmed the findings of the Trial Judge. It may be noted here that Narendranath Chowdhury continued to reside in the suit house as before till he was arrested being falsely implicated in a police case on 2nd Kartick 1370 B. S. and unfortunately died in Jail hajat on 9th Agrahayan, 1370 B. S. The plaintiff who are the sons of Naren were then minors used to reside at their maternal uncle's house. After the demise of their father Narendranath Chowdhury when they came to reside in the suit house on 2nd Agrahayan, 1370 B. S. found that the appellants (hereinafter referred to as defendants 1 and 2) had been living there as trespassers. After the demise of their father Narendranath Chowdhury when they came to reside in the suit house on 2nd Agrahayan, 1370 B. S. found that the appellants (hereinafter referred to as defendants 1 and 2) had been living there as trespassers. The plaintiffs further case is that the second wife of Narendranath, namely, Sujal Rani who was their step mother had executed a deed of gift by surrendering her 1/3rd share in the suit properties in favour of the plaintiffs on II Baisak 1373 B. S. The plaintiffs, however, made repeated demand to vacate the suit house but, when it did not evoke any response. They were obliged to bring the present suit for declaration of their title and for recovery of possession. ( 3 ) BOTH the defendants flied two separate written statements, inter alia, alleging that the defendant No. 2 Sakhi Mondalini who is the mother of the defendant No. l Kanalial Mondal took the settlement from the landlords Abul Hayat Khan and others on 2nd Baisak 1340 B. S. After the settlement made by the land-holders, the defendant No. 2 raised structure upon the suit land and started to reside therein. The defendant No. 2 was dealing with business of pulses and used to stay al Miradal Chandipur on account of her business. Thus, she had let-out the suit house to Narendra Chowdhury at a monthly rental of Rs. 6/ -. It was agreed by and between them that the tenant should pay the Municipal taxes over and above the monthly rental. After it was let out to Narendra, he paid not only rent to the defendant No. 2 and also on some occasion paid taxes to the Municipality. Taking advantage of the temporary absence of defendant No. 2, he managed to record his name in the R. S. record of right in respect of suit properties. The defendant No. 2 when came to know about such surreptitious entry he brought a suit O. C. 277 of 1965 in the Court of 1st Munsif, Malda and obtained a decree in her favour. The stand taken by the defendants was that the plaintiffs father Narendranath Chowdhury by creating an unilateral, forged and fictitious Kabuliyat got his name recorded in the R. S. record of right. Therefore, the R. S. record of right standing in the name of Narendranath was not true, valid and binding upon the defendants. The stand taken by the defendants was that the plaintiffs father Narendranath Chowdhury by creating an unilateral, forged and fictitious Kabuliyat got his name recorded in the R. S. record of right. Therefore, the R. S. record of right standing in the name of Narendranath was not true, valid and binding upon the defendants. It was, further, stated that Narendranath after having been transferred from Malda to Jalalpur surrendered possession of suit house in favour of the defendants. Thus, the defendants are not the trespassers who, have, on the other hand, acquired an indefeasible right over the suit properties. The plaintiffs suit was also resisted on account of improper representation by their maternal uncle and it was, inter alia, pleaded that the plaintiffs could not have brought the suit since they are minor and who are not validly represented through their maternal uncle. The suit was, however, decreed on contest. Therefore, the defendants preferred an appeal and the appellant court after having disagreed with the observations of the Trial Court set aside the findings and remitted the matter for fresh trial to the learned Trial Court. After remand the Trial Judge also on appraisal of the evidence of the parties again decreed the suit, the Trial Court held that the plaintiffs predecessor namely Narendranath had valid title to the suit premises. Though by unilateral execution of Kabuliyat no title could accrue to Narendra but there being several other documents of contemporaneous period which could unequivocally establish the right of the plaintiffs predecessor. The trial court also recorded a finding that the Zamindar who allegedly delivered the land in favour of defendants, he himself filed a suit in T. S. 199/ 59 which was dismissed. He also preferred an appeal against the said Judgment and decree which was equally dismissed by the appellate court, therefore, the landlord being conscious about the possession of Narendranath after having been defeated in T. S. 199/59 could not have laid a claim against his successor through the defendants. In such situation, neither the defendant No. 2 nor any other raiyat representing the interest of the Zamindar could evict the plaintiffs ancestor Narendranath from the suit premises vis-a-vis the plaintiffs. Therefore, the plaintiffs having acquired possessory right over the suit properties were entitled to a decree of possession. In such situation, neither the defendant No. 2 nor any other raiyat representing the interest of the Zamindar could evict the plaintiffs ancestor Narendranath from the suit premises vis-a-vis the plaintiffs. Therefore, the plaintiffs having acquired possessory right over the suit properties were entitled to a decree of possession. The plaintiffs being minor at the time of filing of the suit could be represented through their guardian i. e. their material. uncle. The learned trial Judge has also disbelieved the plea of the defendant No. 2 regarding her claim of letting of the house to Narendranath. The exparte decree said to have been obtained against the State of West Bengal could not bind Narendranath inasmuch as he was not a party to the said suit and the decree was obtained on a false representation that Narendranath had no sons or any heirs. The trial court has also disbelieved the plea of the defendants that the defendant No. 2 had constructed the suit house. With this observation the learned trial court has however, decreed the suit. The appellate court also upheld the findings of the learned trial court Judge and was led to give findings that Narendranath acquired a valid possessory right over the suit properties after whose demise it devolved up on his children. The learned appellate court on the basis of the R. S. record of right. Municipal receipt and also the permission for construction of pucca house held at least from 1955 the plaintiff and their predecessor were in possession of the suit premises. The defendants having committed trespass in the year 1963 have no right to continue in possession and therefore they are liable to be evicted from the suit premises. Taking the over all situation into consideration and also on close scrutiny of the evidence disbelieved the plea of the defendants that they were in possession anterior in time than Narendranath. With these observations, the appeal was dismissed. ( 4 ) MR. Roy Chowdhury, the learned Advocate appearing for flee defendant-appellants argued with a strong intensity of conviction that both, the courts below have palpably committed errors of record in holding that the plaintiffs ancestor Narendranath had possessory title over the suit premises. The claim of the plaintiffs having based upon title the learned courts below should not have held that Narendranath acquired possessory right over the suit premises. The claim of the plaintiffs having based upon title the learned courts below should not have held that Narendranath acquired possessory right over the suit premises. When the claim of possessory right having not been claimed in the plaint the learned courts below should not have made-out a third case about the possessory right in their judgment. Once the party having been quite alive to the case, did not take such plea of possessory right the court could not have passed such a decree and thereby doing justice to one of the parties cannot do injustice to other. Since the suit was based on Article 65 of the Indian Limitation Act, 1963, in the absence of proof of title the plaintiffs suit should have been dismissed. ( 5 ) UNDISPUTEDLY, Abdul Hayat Khan Chowdhury and others were the Zamindars of the disputed property. The claim of the plaintiffs was that their father Narendranath Chowdhury took the settlement of the land from the Zamindar Abdul Hayat Khan Chowdhury and erected structure therein. He executed a registered Kabuliyat in favour of the landlord on 27th Agrahayan, 1361 B. S. The landlord brought a suit in T. S. No. 199/59 against the father of the plaintiffs. It is true that by creation of Kabuliyat no right of occupancy could accrue unless the Zamindar also executed an 'amal Nama' (patta) recognising the tenancy right. In this case, no document according the assent of the lessor has been filed by the plaintiffs, but it cannot be lost sight of that Zamindar had filed a title suit against Narendra in T. S. 199/59 and certified copy of the judgment is marked as an exhibit. The Zamindar in the aforesaid suit had taken the plea that the suit premises was let out to plaintiff No. 5 of that suit and there was mutual execution of Dakhilas and Amal Nama. Had the suit premises been let-out to defendant No. 2, the Zamindar would not have omitted to state the name of the defendant No. 2 as his tenant in T. S. 199/59 nor he would have failed to aver that the suit land was under her occupation. On the contrary it was stated that the premises was under the illegal occupation of Narendranath. In this background, the settlement alleged to have been made in favour of defendant No. 2 cannot be said to be above-board. On the contrary it was stated that the premises was under the illegal occupation of Narendranath. In this background, the settlement alleged to have been made in favour of defendant No. 2 cannot be said to be above-board. ( 6 ) THOUGH, the Amal Nama executed by the Narendranath appears to be a unilateral document but the said Kabuliyat was produced in the suit flied by the erstwhile Zamindar and the appellate court considered the Kabuliyat purported to have been executed by Narendranath. The appellant court had, inter alia, found that Narendra was at least to possession from March 1955. Kabuliyat can be relied upon only for colaterial purposes to hold that Narendra asserting claim of his possession from December. 1954. ( 7 ) ANOTHER significant factor also cannot be lost sight of that the Zamindar could not recover possession from Narendra even after setting plaintiff No. 5 as his lessee. It is not understood how could the defendant No. 2 claim better right than that of her landlord. The suit filed by the erstwhile Zamindar was dismissed on the ground that he could not prove his possession within 12 years from the date of filing of that suit. The observation made in the suit as well as the appeal filed by the Zamindar binds Narendra, and the defendant No. 2 who claims to be a lessee under the Zamindar. ( 8 ) DURING the settlement operation Narendra laid a claim in respect of suit properties for recording his name as a raiyat. Accordingly, after due enquiry the authorities having been satisfied with his possession allowed the land to be recorded in his name. In the attestation stage the name of Narendra was also mentioned. Since it is a record prepared by the public official in due discharge of their duty the presumption of correctness shall be attached. Therefore, the learned court below have relied upon the R. S. Khatian Ext. 10 dated 5. 3. 55. The father of the plaintiffs is to have constructed a house on the suit premises after taking approval from the Municipal Authority. The permission letter is attached with Ext. 9, the plan approved by the Municipality. The learned court, in T. S. 199/59 had rightly disbelieved the claim of the Zamindar that it was let-out to plaintiff No. 5 of that suit. The permission letter is attached with Ext. 9, the plan approved by the Municipality. The learned court, in T. S. 199/59 had rightly disbelieved the claim of the Zamindar that it was let-out to plaintiff No. 5 of that suit. In addition to this the learned courts below have also discussed the oral evidence of P. W. 1, P. W. 7 and P. W. 9. Their statement embodied in the judgment appears to be beyond doubt that Narendra was residing in the suit house for the last 25 or 26 years. ( 9 ) THE defendant No. 2 has claimed to have taken the settlement from the Zamindar in 1340 B. S. In support of her plea, she has filed the Dakhilas for the years 1340, 1341, 1345, 1353, 1359 and 1360. Those Dakhilas clearly mention of the Bandobasta in respect of the plot No. 154/354. The learned courts below has disbelieved Dakhilas on the ground that how could the Plot No. 154/354 appeared in the Dakhilas 1340 B. S. which was prepared only in the year 1954 or 1955. In the above premises, both the courts declined to lay any emphasis on those Dakhilas. From the documents filed by the plaintiffs. i. e. the judgment in T. S. 199/59 and T. A. 80/61 vide Exts. 6 and 5, it appears those clearly raise a presumption that Narendra was found in possession at least from 195455. To add to it Narendra proved Ext 4 the receipt granted by English Bazar Municipality which speakes of his possession. The defendants in their written statement have taken a plea that the house was let-out to Narendra before his transfer. No document was produced before the courts below to substantiate the aforesaid plea. On the other hand, the plaintiff's predecessor had applied for permission from the Municipality and he was paying the Municipal tax which are the best piece of evidence regarding possession. The evidence of PW. 1. P. W. 4, P. W. 9 and P. W. 11 has established that it was Narendra who had been in possession of the disputed land till he was arrested by the police. In such situation, I do not find any apparent mistake in the judgment of the court below that the plaintiffs ancestor Narendra acquired possessory title over the suit land. In such situation, I do not find any apparent mistake in the judgment of the court below that the plaintiffs ancestor Narendra acquired possessory title over the suit land. The defendants in support of plea of possession have relied upon some rent receipts which the trial court has discussed and found those had been prepared after the suit. Therefore, those were rightly not relied upon by the courts below. In respect of the claim of construction of the house by the defendant No. 2 the trial court noticed that the evidence of the defendants witnesses was unreliable, incredible and was for behind the truth. Since this is a second appeal, this court is not entitled to reappraisal of evidence unless it is established by the appellants that the findings are perverse, based on no evidence and any reasonable person could not have reached on such conclusion. No such exceptional circumstances, having been made-out by the appellant I am unable to agree with the contention of the appellants. ( 10 ) MR. Roy Chowdhury, the learned counsel has advance an ingenuous argument by stating that the suit being based under Article 65 and the plaintiffs having not proved their title over the suit properties both the courts below could not have decreed the suit in plaintiffs favour. I found such contention can hardly have any merit inasmuch as when a claim is made for the suit properties which is between the two trespassers the possession of the earlier trespassers is bound to be respected. In the suit between Narendra and the Zamindar the possession of the plaintiffs father was believed in preference to his Landlord. Previous observation made therein also has established that Narendra was in possession at least front 1954. The claim of the defendant No. 2 relating to possession since 1940 was found untrue by both the courts below. In the above premises, the plaintiffs and their father being in possession at an earlier point of time their right has to be protected against subsequent trespassers, namely, the defendants. ( 11 ) THE defendants claim of possession on the basis of exparte decree against the State of West Bengal cannot be upheld inasmuch as it was obtained under an erroneous plea that Narendra left behind no legal heirs. In such background the judgment does not bind the plaintiffs. ( 11 ) THE defendants claim of possession on the basis of exparte decree against the State of West Bengal cannot be upheld inasmuch as it was obtained under an erroneous plea that Narendra left behind no legal heirs. In such background the judgment does not bind the plaintiffs. The plaintiffs suit was based on title but the court found that the plaintiff acquired an interest on the basis of possessory title. I do not find any fault in the judgment inasmuch as though they claimed higher rights but the court awarded them a lessor right that they acquired only possessory right ( 12 ) IN this connection reliance can be placed upon a judgment of the Supreme Court reported in AIR 1968 SC page 1165 the Apex Court has held:"a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his titled by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title. In the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. " ( 13 ) THE appellants had relied upon a decision reported in 1990 SC page 1973 in the case of Ramchandra Pandurang Sonar and ors. v. Murlidhar Ramchandra Sonar and ors. The facts of that case are quite distinguishable from the present suit. In the aforementioned case the sheet anchor of the contention of both parties was whether the property was purchased by a member out of his income or acquired out of joint family fund. v. Murlidhar Ramchandra Sonar and ors. The facts of that case are quite distinguishable from the present suit. In the aforementioned case the sheet anchor of the contention of both parties was whether the property was purchased by a member out of his income or acquired out of joint family fund. The court below rendered findings in the above case contrary to the admission of the plaintiff, therefore, the apex court said in the above background that the High Court should not have rendered findings which was not the plea of the plaintiff but in the instant case the plaintiff had claimed title, the courts passed decree, on the basis of possessory title. I do not find any inconsistency in the findings of the courts below. ( 14 ) IN the above back-drop of the case, there being no vulnerability in the judgment and decree passed by the courts below the appeal has, therefore, been dismissed. ( 15 ) ACCORDINGLY, the judgment and decree passed by the courts below are hereby affirmed but the parties are directed to bear their own costs. Appeal dismissed