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2000 DIGILAW 350 (CAL)

PANCHUBALA DASSI v. MONMOTHO NATH MONDAL

2000-07-18

GORACHAND DE

body2000
G. C. DE, J. ( 1 ) -THIS second appeal is directed against the judgment and decree dated 10. 6. 77 passed by the learned District Judge, Burdwan in T. A. No. 123/63. By the said judgment the learned District Judge set aside the judgment of the trial Court in Title Suit No. 135 of 1962, renumbered on transfer as Title Suit No. 395 of 1960. ( 2 ) THE plaintiff, who is the present appellant, instituted a Title suit praying for a declaration of her title and recovery of possession with other reliefs in respect of three plots of land having a total area of 2. 63 Acres in Khatian No. 119 in Mouza Chhoto Belun, J. L. No. 107 of Police Station and District Burdwan. ( 3 ) THE plaintiff's case is that her father Sarat Majhi was the original owner in respect of the suit properties and his possession was duly recorded in the C. S. Record of Rights; that after the death of Sarat Majhi the plaintiff is the only legal heiress acquired the suit property; that in 1941 she sold the suit property to one Chintamoni Hazra and that on 2. 8. 58, she repurchased the suit property from Chintamoni Hazra and since then she was in possession of the same. But the defendants without any lawful right harvested the paddy from the suit land from 1. 12. 60. On enquiry, it was ascertained that the defendants illegally got their names recorded in the C. S. Record of Rights and dispossessed the plaintiff. Hence, the suit was filed. ( 4 ) THE suit was contested by the Defendant Nos. 2 to 8 by filing written statement in which the material allegations were denied and it was specifically stated that the defendants all along have been occupying the suit property as the owner and that the father of the plaintiff, who was entrusted to get the names of the original owners recorded in the C. S. Records of right, managed to get his own name recorded in the "possession" column of the C. S. Record of Rights. The defendants accordingly prayed for dismissal of the suit. The defendants accordingly prayed for dismissal of the suit. ( 5 ) ON the basis of the respective pleadings, the learned Munsif framed issues and after considering the evidence adduced by the parties decreed the suit and declared the right, title and interest of the plaintiff in the suit property and ordered for khas possession after evicting the defendants from the suit property. ( 6 ) AGAINST the said decree Title Appeal No. 123/63 was filed and the appellate Court confirmed the judgment and decree of the trial Court. The defendants thereafter preferred a second appeal which was numbered as S. A. 1680/65. Hon'ble Mr. Justice Ambika Pada Bhattacharyya by his judgment dated 7. 3. 76 set aside the finding of the first appellate Court and sent the suit back on remand with a finding that the plaintiff was to prove her title and also to rebut the presumption of the C. S. Record of Rights. ( 7 ) AFTER the remand the first appellate Court considered the materials on record and passed the impugned judgment allowing the appeal and dismissing the Title Suit mainly on the ground that the plaintiff failed to prove her title in respect of the suit property and that the presumption of the C. S. Record of Rights was not rebutted by her. ( 8 ) IN course of hearing of this appeal, the respondents did not appear and contest in spite of service of notice. But at the time of admission hearing the judgment of the first appellate Court was stayed by an order dated 10. 6. 82 on condition of the plaintiff/petitioner's depositing a sum of Rs. 1000/- by 31. 8. 82 in the trial Court and also on her depositing in every year the said amount till the disposal of the appeal. There was also a direction that the parties shall not be at liberty to withdraw the said amount till the appeal is finally disposed of. ( 9 ) IT is also to be noted that no substantial question of law was framed at the time of admission of the second appeal, but after hearing the learned counsel for the appellant the following substantial questions of law were framed :"i. . ( 9 ) IT is also to be noted that no substantial question of law was framed at the time of admission of the second appeal, but after hearing the learned counsel for the appellant the following substantial questions of law were framed :"i. . For that the learned Judge of the Court of appeal below has not come into close quarters with the materials disclosed in the pleadings and evidence upon which trial Court placed material reliance and this involves a substantial question of law. II. For that there has been a substantial error of defect in the procedure in the trial of the appeal which vitally affected the decision of the appeal and the same involves a substantial question of law. III. For that a substantial question of law is raised when the Court of appeal below did not accept the argument of the learned lawyer for the appellant to the effect that settlement record is relevant as some evidence of title to the recorded plots of land and erred in law in not holding that the plaintiff-appellant is quite entitled under the law to base her claim on the C. S. Record of Rights. " ( 10 ) IN this appeal, another application under Order 41 Rule 27 of the Code of Civil Procedure was also filed praying for acceptance of L. R. Record of rights and concerned rent receipts to show the present possession of the plaintiff. ( 11 ) THE contention of the learned counsel for the appellant is that the title of the father of the plaintiff was correctly noted in the C. S. Record of Rights and as such it is to be presumed that the R. S. Record of Rights did not reflect the real state of affairs and in the subsequent L. R. Record of rights, the possession of the plaintiff has been duly recorded. It is also contended that the endorsement 'possession by purchase' in favour of the father of the plaintiff against the suit plots in the C. S. Record of rights, is indicative of the fact that a sale deed was actually produced before the appropriate authority at the time of recording of the C. S. Record of Rights. It is also contended that the endorsement 'possession by purchase' in favour of the father of the plaintiff against the suit plots in the C. S. Record of rights, is indicative of the fact that a sale deed was actually produced before the appropriate authority at the time of recording of the C. S. Record of Rights. It is also contended that the possession of the plaintiff up to 1941 and subsequently since 1958 is evident from the case made out in the plaint itself and proved by evidence adduced. So, the learned counsel tried to argue that the finding of the first appellate Court has to be set aside and the judgment of the trial Court is to be confirmed. ( 12 ) BUT on a persusal of the judgment of the first appellate Court, it appears that it placed reliance on the judgment dated 7. 3. 76 passed by this Court in S. A. 1680/65. In the said judgment, there was a specific direction that the first appellate Court will decide the appeal afresh bearing in mind that"onus lies on the plaintiff to rebut the presumption of correctness attached to the R. S. Records. He should also bear in mind that the C. S. Record in the instant case, has no presumption whatsoever and that the plaintiff must prove affirmatively her title by proving that Sarat Majhi had title in the disputed plots and that she inherited the said plots from him. If the plaintiff succeeds in proving her title to the satisfaction of the Court the onus would stand discharged, not otherwise". ( 13 ) IT appears that the alleged sale deed in favour of Sarat Majhi was not filed and no evidence was adduced by the plaintiff in support of her claim that Sarat Majhi had title in the disputed plots, though the plaintiff in her evidence admitted that the sale deed in favour of her father was in her possession. Similarly, there is no cogent evidence on record to rebut the presumption of correctness attached to the R. S. Record or rights. ( 14 ) THE prayer for leave to produce L. R. Records for proving the subsequent events cannot be taken into consideration specially in view of the fact that it is not indicated as to when the plaintiff recovered khas possession after being dispossessed from the suit property in 1960. ( 14 ) THE prayer for leave to produce L. R. Records for proving the subsequent events cannot be taken into consideration specially in view of the fact that it is not indicated as to when the plaintiff recovered khas possession after being dispossessed from the suit property in 1960. The L. R. Record of rights is also not finally published as yet and it has also not been produced. Hence, the prayer to accept L. R. Record of right and few rent receipts are nothing but afterthought and an attempt to fill in lacuna which in law cannot be permitted under Order 41, Rule 27 of the Civil Procedure Code. ( 15 ) AN argument was made to the effect that the admission of one Kalipada Mondal in the Sale Deed of 1941 (Ext. 1-a) is to be taken care of and the same admission has to be treated as evidence of title of the father of the plaintiff. On this score, learned counsel for the appellant placed reliance on a single Bench judgment of this Court in Bhutnath Bandopadhyay v. Jagat Tarini Das reported in 71 CLJ 200 and a decision of the apex Court reported in AIR 1977 Supreme Court 1724 (Thirujan v. Subramaniam ). The principle enunciated in these judgments is that an admission, if clearly and unequivocally made is the best evidence against the party making it and though not conclusive shifts the onus on the maker. ( 16 ) IN course of dilating this argument, the learned Advocate for the appellant drew my attention to a certified copy of the sale deed of 1941 (Ext. 1-a) in which there is a recital that the LTI of the present plaintiff was attested by one Kalipada Mondal who was also described as an identifier in the deed. In the said Deed, this Kalipada Mondal has been shown as the son of one Ram Taran Mondal of Chhota Belun, Police Station and District Burdwan. But no further evidence has been adduced to clarify actually whether this Kalipada Mondal is the Defendant No. 1, and no attempt was made to examine him as a witness by the plaintiff. ( 17 ) THE first appellate Court on this score rightly pointed out that this admission, if really constituted admission of title of the plaintiff by Kalipada Mondal, cannot create any title against the other defendants. ( 17 ) THE first appellate Court on this score rightly pointed out that this admission, if really constituted admission of title of the plaintiff by Kalipada Mondal, cannot create any title against the other defendants. It is also clarified that the admission cannot create any title in favour of the plaintiff. ( 18 ) ON the basis of the said document, it is not at all possible to come to a conclusion that the admission as regards the title of the plaintiff was clearly and unequivocally made. On the other hand, the materials on record, as discussed by the first appellate Court and also produced in course of this hearing, it is evident that the title of Sarat Majhi has not been proved at all and hence it is not possible to hold and conclude that the plaintiff has right and title in the suit property. The first appellate Court appears to have examined this point correctly and came to a just decision. ( 19 ) AS regards the possession, the learned counsel for the appellant tried to argue that the plaintiff is in possession of the suit property for more than 40 years. But it is already stated above that the plaintiff was dispossessed from the suit property in the year 1960. It is not understandable as to how the possession of the plaintiff can be said to be continuing for more than 40 years specially when it is admitted by the plaintiff that the property was repurchased from Chintamoni Hajra by the plaintiff herself only in 1958. ( 20 ) IT is also the plaint case that the plaintiff sold the property to Chintamoni Hajra as early as in 1941. The said Chintamoni Hajra never claimed any title by adverse possession and she was also not examined in this suit. So, on the basis of the plaint case and the evidence on record, it cannot be said that the plaintiff is in possession of the suit property continuously after having acquiring adverse title by way of ouster of the original owner for more than 12 years, not to speak of for more than 40 years. Moreover, no case of adverse possession has been made out in the plaint itself. Moreover, no case of adverse possession has been made out in the plaint itself. ( 21 ) ACCORDINGLY, sitting in second appeal without a definite prayer to that effect and without any materials on record, it is not possible to consider the case of acquisition of title by adverse possession by the plaintiff herself prior to the institution of the suit. ( 22 ) IN view of the discussion made hereinabove, I hold and conclude that the plaintiff has failed to prove her right and title in respect of the suit property and she has not made out any case for recovery of possession. The judgment and decree of the first appellate Court do not call for any interference and in fact there is nothing on the record on the basis of which it can be said that there is any substantial question of law for decision after the judgment passed by this Court earlier in the year 1976. ( 23 ) THIS appeal is accordingly dismissed. The judgment and decree of the first appellate Court are hereby confirmed. The present appellant shall be at liberty to without the amount deposited in this Court after due notice to the opposite parties. The parties will bear their own costs. Let the Lower Court Records be sent down to the Court below forthwith. Certified copy/certified Xerox copy of this judgment, if applied for, be granted as expeditiously as possible. Appeal dismissed