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2000 DIGILAW 618 (CAL)

SAMSHER DORJI v. CHAMMADALI DORJI

2000-12-08

GIRISH CHANDRA GUPTA

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G. C. GUPTA, J. ( 1 ) THIS Second Appeal is, at the instance of the defendants, directed against a decree of reversal passed by the learned Lower Appellate Court. Briefly stated the case of the plaintiffs is that by a deed of conveyance dated 19-4-1938 one Golam Sopan Dorji purchased the disputed land from one Ashiruddin Sk. Upon the death of the said Golam Sopan Dorji the plaintiffs and the proforma defendants No. 5 to 7 inherited the said land and have been continuing in possession thereof. It is alleged that due to a mistake the disputed land was recorded in the name of one Osman Dorji instead of the said Golam Sopan Dorji in the R. S. Record of right. It is further alleged that the said R. S. Record is baseless; Osman Dorji did never have any right title interest or possession in respect of the disputed land. Further case of the plaintiff is that taking advantage of the aforesaid incorrect recording the defendants No. 1, 2 and 3 on 8-4-1977 threatened to dispossess the plaintiffs. The defendants No. 1 and 2 are the sons of the said Osman Darji since deceased and the defendant No. 3 is a transferee of the disputed piece of land from the defendants No. 1 and 2. The plaintiffs in the circumstances, claimed declaration of title and permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs. The defendants have denied all material allegations contained in the plaint. ( 2 ) THE trial Court held that the plaintiffs are not in possessing; the entry in the R. S. Record of right is not incorrect and the suit is barred by limitation. Inter alia on the basis of the aforesaid the trial Court dismissed the suit. The trial Court assigned the following reason :- (I) The certified copy of the R. S. Khatian No. 230 (Ext. 'c') proves that during R. S. operation Osman Darji was in possession of the suit land. (ii) No cogent evidence on the part of the plaintiffs was adduced to rebut the presumption about the correctness of the R. S. Record. (iii) Akbar Ali Darji the plaintiffs witness No. 2 deposed that both plaintiff No. 1 and the defendant No. 3 are in possession of the suit land. (ii) No cogent evidence on the part of the plaintiffs was adduced to rebut the presumption about the correctness of the R. S. Record. (iii) Akbar Ali Darji the plaintiffs witness No. 2 deposed that both plaintiff No. 1 and the defendant No. 3 are in possession of the suit land. (iv) It was admitted by the proforma defendant No. 6 who appeared as the P. W. 1 that he purchased 5 cents of land which at that time formed part of the disputed land from Osman Darji on 1-11-1968. The proforma defendant No. 6, Abdul Latif who deposed as the P. W. 1 is the brother of the plaintiff No. 1. (v) The fact that Abdul Latif purchased the said 5 cents of land from Osman Dorji and subsequently sold the same to Asura Bibi, sister of the defendant No. 3, militates against the contention of the plaintiffs both as regards title and possession. For in that case there could be no question of the aforesaid 5 cents of land being purchased by Latif from Osman Dorji. (vi) R. S. Record shows that Osman Darji was in possession since 1945. Osman Dorji sold the said 5 cents of land to Abdul Latif in the year 1968. Thus from the year 1945 to 1968 his possession in established. This goes to show that he was in possession for more than 12 years. (vii) The D. W. 2 has deposed that the defendants No. 3 and 4 are in possession of the suit land. (viii) It is true that by Ext. 'a' Golam Sopan Darji acquired title to suit land but the same was extinguished by adverse possession of the suit land by Osman Dorji and the plaintiffs did not acquire any title to the suit land on the death of their predecessor Golam Sopan Dorji. ( 3 ) THE Lower Appellate Court held that the defendants had failed to prove adverse possession and therefore the irresistable conclusion was that the plaintiffs have their subsisting right title and interest in the land. In taking the aforesaid view, the Lower Appellate Court held that (a) R. S. Record of right should not be taken as a sacrosanct document; and (b) that there is no scope to come to the conclusion that Osma Dorji acquired title to the land in suit by continuous possession for more than 12 years. In taking the aforesaid view, the Lower Appellate Court held that (a) R. S. Record of right should not be taken as a sacrosanct document; and (b) that there is no scope to come to the conclusion that Osma Dorji acquired title to the land in suit by continuous possession for more than 12 years. ( 4 ) IT is evident that the Lower Appellate Court has not dealt with all the findings and/or reasons assigned by the trial Court for dismissing the suit. The finding of the trial Court that the defendants are in possession has not even been touched by the Lower Appellate Court. So, is the case with the finding that the suit is barred by limitation. ( 5 ) IN the circumstances, the following substantial questions of law arise :- (A) Is the Lower Appellate Court bound to consider all the reasons given by the trial Court before recording a finding of reversal? (b) What evidentiary value, if any, is to be attached to the R. S. Records of right. (c) Do the plaintiffs have the burden of the proving that the suit is not barred by limitation? ( 6 ) I shall deal with the questions formulated above point-wise. Point (a)-In answering this question in the affirmative I need only to refer to the judgment of the apex Court in the case of S. V. R. Modallior v. Mrs. Rajab F. Behari, reported in AIR 1995 SC 1607 where Their Lordships stated the law as follows :-"there is no need to pursue that legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, (1906) 10 Cal. WN 630, wherein while regarding the appellate judgment of the High Court of Judicature at Fort William as 'careful and able', it was stated that it did not 'come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge. WN 630, wherein while regarding the appellate judgment of the High Court of Judicature at Fort William as 'careful and able', it was stated that it did not 'come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge. " ( 7 ) I say also refer to a Division Bench Judgment of this Court in the case of A. H. Mohammad Ismail and Company v. Sachidananda Bhattacharjee, reported in 40 CWN 770 wherein it was held as follows :-a finding of fact by the first appellate Court without consideration of material facts and circumstances on which the Court based its decision is not binding in second appeal. " ( 8 ) POINT (b)-Section 44 (3c) and (4) of the West Bengal Estate Acquisition Act. 1953 provide inter alia as follows :-44 (3c)-In any suit or other proceeding in which a record of rights prepared and published under this chapter, or a duly certified copy thereof or extract therefrom, is produced, such record of rights shall be presumed to have been finally published unless such publication is expressly denied. ""44 (4)-EVERY entry in the record of rights finally published under sub-section (2) including an entry revised under sub-section (2a) made under section 42a or corrected under section 45 or section 45a shall, subject to any modification by an order on appeal under sub-section (3), be presumed to be correct. " ( 9 ) SIR Dinshaw Mullah, J in the Judicial Committee of the Privy Council in the case of Mahantha Krishna Dayal v. Rani Bhubaneswari reported in AIR 1931 PC 221 held 'that the entry in the Record of Right is presumed to be correct until it is proved to be incorrect by evidence. " ( 10 ) IN my view, the aforesaid view of the Privy Council would also apply to the Record of Rights prepared under the provision of the West Bengal Estate Acquisition Act, 1953. Therefore the finding of the Court below that R. S. Record of right is not sacresanct in the facts of this case is clearly erroneous. ( 11 ) POINT (c)-There can be no matter of doubt that before a plaintiff can succeed in his suit he must prove that the suit is within the prescribed period of limitation. Therefore the finding of the Court below that R. S. Record of right is not sacresanct in the facts of this case is clearly erroneous. ( 11 ) POINT (c)-There can be no matter of doubt that before a plaintiff can succeed in his suit he must prove that the suit is within the prescribed period of limitation. ( 12 ) NOW coming to the case in hand it is not disputed by the learned counsel appearing on behalf of the plaintiffs that any of the reasons assigned by the trial Court in arriving at the aforesaid conclusion was factually incorrect. The learned Appellate Court below took the view that the defendants have failed to prove that they acquired title by adverse possession. Assuming that the defendants failed to do so, the burden would still be heavy on the plaintiffs to prove that their suit is within the prescribed period of limitation. The plaintiffs in the plaint have claimed that they are in possession. This assertion of the plaintiffs has been belied by their own witness namely the P. W. 2. The learned trial Court has on the basis of evidence on record come to be conclusion that the plaintiffs were not in possession. There is no indication by the plaintiffs as to when did they loose possession. Record of Rights goes to show that the predecessor-in-interest of the defendants No, 1 and 2 was in possession since 1945. The fact that he continued in possession till 1968 cannot be doubted. The plaintiffs alleged that the entry in the Record of Rights is incorrect but they failed to prove the same. In the circumstances, I cannot but held that the finding of the learned trial Court that the suit is barred by limitation is correct. I further find that it was not open to the learned Appellate Court below to decree the suit without reversing the aforesaid finding regarding limitation made by the trial Court. For the reasons aforesaid, the appeal succeeds. The suit is dismissed and the decree passed by the learned Court below is set aside. There will be no order as to costs. Appeal succeeds.