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2002 DIGILAW 342 (CAL)

Gunadhar Ojha v. Kangal Chandra Giri

2002-05-17

Joytosh Banerjee

body2002
JUDGMENT Joytosh Banerjee, J.: The present appeal is directed against the judgment dated 30.9.94 and the decree dated 3.12.94 passed by Sri H. C. Das, the learned Assistant District Judge, 2nd Court, Contai in T. A. No. 8/94 setting aside the judgment dated 6.3.93 passed by Sri Santanu Roy, the learned Munsif, 1st Additional Court, Contai in T. S. No. 12/91. 2. Plot No. 228 of Mouza Balvadrapur under P. S. Contai in the district of Midnapore, measuring about 3 decimals is the subject matter of the suit and the said suit property has been described in Schedule 'ka' of the plaint. The plaintiff/respondents have filed the suit for declaration in respect of the 'ka' Schedule property with consequential relief alleging, inter alia, that the 'ka' Schedule property is situated in between Plot Nos. 227 and 229 and the properties appertaining to those Plot Nos. 227 and 229 along with other properties previously belonged to Ramesh Chandra Barui. The plaintiffs through different kobalas purchased 9 decimals of land situated on the eastern portion of the Plot Nos. 227 and 229 from the said Ramesh Chandra Barui. After their purchase, they began to possess the property by paying rent to the landlord. It is alleged that, since long, prior to such purchase, the predecessor-in-interest of the plaintiff Ramesh Chandra Barui had residential house on the eastern portion of Plot No. 227, Plot No. 229 and also on Plot No. 228. After their purchase as stated above, the plaintiffs began to possess the lands thus purchased and the suit land like their predecessor-in-interest by way of one compact block and in this was they were in possession of the suit land for more than 60 years. It is further alleged that when the defendants and some other villagers claimed the suit land as the pathway for the use of people in general of the locality, the plaintiffs on enquiry came to learn that the suit land was shown as the pathway for the use of the people in general of the locality, in the last R. S. record-of-rights. It is specifically alleged that the suit land as described in R. S., R. O. R. was never used as a pathway by the people of the locality. On the other hand the plaintiffs and before them their predecessor-in-interest openly and without interruption and resistance enjoyed the said land as their own. It is specifically alleged that the suit land as described in R. S., R. O. R. was never used as a pathway by the people of the locality. On the other hand the plaintiffs and before them their predecessor-in-interest openly and without interruption and resistance enjoyed the said land as their own. The predecessor-in-interest used and enjoyed the suit land as his own before transferring it to the plaintiffs, in one compact block and in this way the right of the actual owner of the land was extinguished through the adverse possession of such land by the plaintiffs and before them by their predecessor-in-interest for more than 60 years. 3. The defendant, State of West Bengal contested the suit on a written statement. Besides denying the material plaint allegation, the defendant/State specifically alleged that the suit plot which was recorded as a pathway, originally belonged to Durgadas Roy and Annapurna Dasi in equal shares and those persons were big raiyats who did not retain the suit land which stood vested in the State. 4. The learned Munsif on the basis of the aforesaid pleadings raised number of issues including the issue touching the question whether the plaintiffs had any right, title, interest and possession over the suit land and pointed out that according to the case of the plaintiff/respondents their vendor Ramesh Chandra Barui adversely possessed the suit plot No. 228 and since after the purchase of land in plot Nos. 227 and 229 the present plaintiffs have been possessing the suit plot No. 228 adversely and the entry in the record-of-rights in respect of the .suit land was erroneous. He pointed out that P.W.1, Ramhari Giri (plaintiff No.3) on being examined as P.W.1 admitted in his cross-examination, plot No. 228 had been recorded in R. O. R. as pathway for villagers and they did not file any objection against the said entry in R. O. R. The learned Munsif further pointed out that this witness admitted that he had no document to show that plot No. 228 belonged to Ramesh Chandra Barui. He further pointed out that the witness did not claim that Ramesh Chandra Barui had any right, title and interest over the suit plot. He further pointed out that the witness did not claim that Ramesh Chandra Barui had any right, title and interest over the suit plot. The said witness admitted further that the suit plot previously belonged to one Durgadas Roy who was a big raiyat and due to non-retention by the said big raiyat the suit plot stood vested in the State and recorded in the name of State of West Bengal under Khatian No. 1. Learned Munsif further examined the deed of purchase in the name of plaintiff Nos.1 and 2 executed by Ramesh Chandra Barui and found that boundary of their purchased land in Plot Nos. 227 and 229 as shown in the deed clearly indicated the existence of a pathway in between plot Nos. 227 and 229 further pointed out that admittedly plot No. 228, the suit plot was situated in between plot Nos. 227 and 229. The learned Munsif further pointed out that plaintiffs were not claiming their title over the suit plot on the basis of their purchase deed. But plaintiffs placed much reliance on the report of the Commissioner appointed for local inspection in support of their contention that there was remnant of Ramesh Chandra Barui's house on the suit land and there was no existence of pathway on the suit plot. But the learned Munsif found that since there was no local investigation, the Commissioner for local inspection without surveying the plots was not in a position to state correctly whether there was any remnant of the house as stated above on plot No. 228 or not. The learned Munsif also pointed out that in the facts and circumstances of the case, the plea of adverse possession set up by the plaintiffs from the time of their predecessor-in-interest also could not stand scrutiny. With this findings, the learned trial court dismissed the suit. 5. The appellate court below by the judgment impugned pointed out that the Commissioner who was appointed to give report on several points had indicated in the report that there was a sign of old house which had been destroyed in course of the time on the compact block consisting of plot Nos. 229 and 227 purchased by the plaintiffs and suit plot No. 228 of which the plaintiffs claim life title on the basis of adverse possession since the time of their predecessor-in-interest. 229 and 227 purchased by the plaintiffs and suit plot No. 228 of which the plaintiffs claim life title on the basis of adverse possession since the time of their predecessor-in-interest. Coupled with this, the learned appellate court below considered the evidence of few local witnesses to come to a conclusion that there was no pathway on the suit plot No. 228 at any point of time. On these findings, the learned appellate court below observed that the trial court ought to have considered that the plaintiffs have been possessing the suit land since more than 60 years and decreed the suit reversing the judgment of dismissal passed by the trial court. 6. Now, at the time of admission, the learned Division Bench did not specifically indicate the substantial question of law involved in the appeal. In this background, at the time of hearing of the appeal, I formulated the following question as the substantial question of law involved in the present appeal, after going through the Memo of Appeal and also after hearing the learned Advocate for the appellant:–– Whether the court of appeal below improperly set aside the judgment of the trial court without considering the question involved in its proper perspective ? 7. Before I proceed further in the matter to consider the merits of the plaintiffs case, it is to be noted that admittedly through the finally published record-of-rights, the suit land, namely, plot No. 228 stands recorded as a pathway for the use of the members of the public in general of the locality and it is further to be noted that at no point of time, the predecessor-in-interest of the plaintiffs ever filed any objection against the draft publication of the record-of-rights. As the matter stands now, the finally published record-of-rights as I have already pointed out goes to show that the suit plot is a public pathway. Under section 44 clause (4) of the West Bengal Estates Acquisition Act every entry in the record-of-rights finally published has got a presumption to be correct till the same is rebutted. As the matter stands now, the finally published record-of-rights as I have already pointed out goes to show that the suit plot is a public pathway. Under section 44 clause (4) of the West Bengal Estates Acquisition Act every entry in the record-of-rights finally published has got a presumption to be correct till the same is rebutted. Now, dealing with the question at issue, namely, whether the plaintiffs and before them their predecessor-in-interest had the adverse possession over the suit plot, the learned Munsif in his judgment pointed out that one of the plaintiffs, namely, Ramhari Giri on being examined as P.W.1 admitted in the cross-examination that plot No. 228 had been recorded in the R. O. R. of 1360 B. S. as pathway for the villagers and they did not file any objection against the said entry in the R. O. R. in respect of plot No. 228. The learned Munsif further indicated in his judgment that P.W.1 further admitted in his cross-examination that the suit plot previously belonged to one Durgadas Roy who was a big raiyat and due to non-retention by him, the same stood vested in the State and was recorded in the name of State of West Bengal under Khatian No.1. In this connection, the learned Munsif also examined a deed, namely, Ext. 1 (a) through which the plaintiff Nos. 1 and 2 purchased some lands from the original owner Ramesh Chandra Barui and on examining the same found that the boundary of their purchased land both in plot Nos. 227 and 229 noted the existence of a pathway in between those plots, namely, plot Nos. 227 and 229 and after indicating the same, the learned Munsif observed rightly that admittedly the suit plot No. 228 was situated in between those two plots, namely Plot Nos. 227 and 229. Regarding the report submitted by the Advocate Commissioner after holding local inspection, the learned Munsif found that the Commissioner was not a survey passed lawyer and he did not survey the plots in coming to any conclusion regarding the identification of suit plot No. 228. The learned Munsif further disclosed that it was nobody's case that the vendor of the plaintiffs, namely, Ramesh Chandra Barui had any private pathway, on the other hand, two sale deeds Exts. The learned Munsif further disclosed that it was nobody's case that the vendor of the plaintiffs, namely, Ramesh Chandra Barui had any private pathway, on the other hand, two sale deeds Exts. 1 and 1(a) which were executed by the said Ramesh Chandra Barui clearly revealed that there was a pathway in between plot Nos. 227 and 229. In this way it transpires that the learned trial court through its judgment clearly indicated that there was not only a presumption of correctness of the relevant entry in respect of plot No. 228 as the public pathway, there was also a basis for such entry as evidence through the admission of P.W.1 that the suit plot originally belonged to a big raiyat who did not retain that plot and due to that the suit plot stood vested in the State. The learned Munsif further dealt with the question by pointing out that the sale deeds Ext.1 and 1(a) executed by the vendor of the plaintiffs clearly indicated that there was a pathway in between on the suit plot, as noted above. But I find from the judgment impugned that the learned appellate court did not consider the question from its proper perspective. He started his finding by pointing out that the plaintiffs never claimed the suit land in plot No. 228 was purchased by them. They claim the same by adverse possession since long before the date of their purchase for about 60 years. Thereafter, the learned appellate court proposed to examine two sale deeds executed by the vendor of the plaintiffs Ramesh Chandra Barui in favour of plaintiff Nos. 1 and 2. Unfortunately, he did not make any observation whether the specific observation made by the learned Munsif in his judgment .that in both the deeds there was a specific mention of a pathway in between the two plots purchased by the plaintiffs, namely, plot Nos. 227 and 229 was erroneous or not. He just observed that by virtue of those deeds the plaintiffs purchased land of plot Nos. 229 and 227 which is an admitted position. Thereafter, the learned Judge of the appellate court below proceeded to consider the report of the Commissioner. 227 and 229 was erroneous or not. He just observed that by virtue of those deeds the plaintiffs purchased land of plot Nos. 229 and 227 which is an admitted position. Thereafter, the learned Judge of the appellate court below proceeded to consider the report of the Commissioner. In considering the same, the appellate court found that the Commissioner in his report indicated that there was a flower garden in plot No. 228 which belonged to the plaintiffs and there was a public pathway on plot No. 227 adjacent to plot No. 228. It is very strange that the learned appellate court chose to rely completely on the report of the Commissioner for local inspection in coming to the conclusion about the point at issue that the plot No. 228 was in possession of the plaintiffs. It is well settled that before considering the evidence of any witness, the court must consider the competency of that particular witness to depose about a particular point. Here the question is how could the Commissioner who was not a qualified survey passed Commissioner identify the plot No. 228 ? The judgment impugned is completely silent about the competency of the Commissioner. In fact, the learned appellant court chose to rely on the evidence of the Advocate Commissioner shutting its eyes to some other relevant facts and circumstances which practically make the claim of the plaintiffs here improbable. It has already been noted that P.W.1 in his cross-examination admitted that the suit land originally belonged to a big raiyat who did not retain the land. Therefore, the suit land stood vested in the State. If that is the admitted position, then how could the predecessor-in-interest of the plaintiffs possessed the suit land and if really the said predecessor-in-interest started to possess the suit land adversely against the interest of the true owner, namely, the said big raiyat, then what prevented that vendor of the plaintiffs to raise any objection regarding the preparation of the record-of-rights under the Estates Acquisition Act? It is nobody's case that the vendor of the plaintiffs and subsequently the plaintiffs were completely ignorant of the position of the suit land in the record-of-rights prepared under the provisions of the West Bengal Estates Acquisition Act and also the recent publication under the West Bengal Land Reforms Act. It is nobody's case that the vendor of the plaintiffs and subsequently the plaintiffs were completely ignorant of the position of the suit land in the record-of-rights prepared under the provisions of the West Bengal Estates Acquisition Act and also the recent publication under the West Bengal Land Reforms Act. At least the admission on the part of P.W.1 practically went against such a plea. It further transpires that the learned appellate court superficially discussed the evidence of some of the witnesses in order to come to the conclusion that the suit land was never used as a pathway. But the question is whether the presumption of correctness arising out of finally published record-of-rights, should be held to be rebutted only referring to some stray statement of some of the witnesses? In this connection I find that the learned Munsif in his judgment also referred the evidence of those witnesses but assigned sufficient reason why he could not rely on the evidence of those witnesses. In order to come to a final conclusion, the learned appellate court below made the following observation which in my considered opinion does not make any sense and it reads as follows at Page 31 of P. B. "The R. O. R. was finally published in 1956. The date of purchasing the property is no way the criterion as evidences. The plaintiffs' vendor Ramesh was possessing the suit property by amalgamated the same with the plot Nos. 227 and 229. So, as per mathematical calculation the physical possession been proved since more than 60 years?" No reason has been assigned by the learned Judge how he came to a very important conclusion that the plaintiffs' vendor Ramesh Chandra Barui started possessing the suit property by amalgamating the said plot with Plot Nos. 227 and 229. If really this thing happened, then at least in the deeds of transfer Exts.1 and 1(a) there would have been recitals clearly indicating that the vendor since a particular time started possessing the plot No. 228 openly and such possession was expressedly or impliedly in denial of the title of the true owner namely, Durgadas Roy, the big raiyat. 8. If really this thing happened, then at least in the deeds of transfer Exts.1 and 1(a) there would have been recitals clearly indicating that the vendor since a particular time started possessing the plot No. 228 openly and such possession was expressedly or impliedly in denial of the title of the true owner namely, Durgadas Roy, the big raiyat. 8. At the time of making this submission, the learned Advocate for the respondent has pointed out that the Commissioner who held the local inspection, was appointed by the court and if really no purpose was served by the report of such Commissioner it was the duty of the court to cancel the report and to make an order for appointment of a survey passed Commission for local investigation. In this connection, the learned Advocate has referred me to Order 26 Rule 10(3) of the Civil Procedure Code which lays down that where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it shall think fit. The learned Advocate has also referred to a decision of the Kerala High Court reported in AIR 1987 Kerala 156. But I am of the opinion that the respondent cannot be benefited through the provision of the Civil Procedure Code cited and the case law referred to. Sub-rule (3) clearly indicate that where the court for any reason is dissatisfied with the proceeding of the Commissioner, then such court may direct such further enquiry to be made by such Commissioner and the reported decision of the Kerala High Court has further pointed out it is not correct to say that under no circumstance without setting aside an earlier report, the court can appoint a second Commissioner or the same Commission to not details which have been omitted by him when the Commissioner made the first report. But here the question is how a party proposes to prove his case. It is not the duty of the court to advise the party in what way such party will succeed in proving the case. In the instant case, what was required was to identify the suit plot No. 228 and record further how such suit plot was being used. It is not the duty of the court to advise the party in what way such party will succeed in proving the case. In the instant case, what was required was to identify the suit plot No. 228 and record further how such suit plot was being used. Now in the evidence, the Commissioner who submitted the report after holding inspection admitted that he was not survey passed advocate and he did not survey the land in question. There is nothing to indicate that the court had any reason to be dissatisfied with the proceeding of the Commissioner in executing the writ, as required under sub-rule (3) of Rule 10 of Order 26 C. P. Code. 9. In this way, I find that the learned appellate court below erroneously came to a conclusion that the plaintiff/respondents acquired a good title over the suit property by adverse possession. But here the further question would be whether in a second appeal, the High Court can disturb the finding of fact of the first appellate court. In the case of Kulwant Kaur vs. Gurdial Singh Mann(dead) by L. Rs. & Ors., reported in AIR 2001 SC 1273 , Raghunath G. Panhale (dead) by L.Rs. vs. M/s. Chaganlal Surdarji & Co., reported in AIR 1999 SC 3864 and Hamida & Ors. vs. Md. Khalil, reported in AIR 2001 SC 2282 , the Apex Court dealt with the question whether the finding of the lower appellate court on facts can be altered or not in the second appeal by the High Court. The ratio from those reported decisions of the Apex Court is that ordinarily it is not open to the High Court in second appeal to interfere with the finding of fact unless such a finding is based on conjectures, surmises or on some evidence not admissible in law. It has further been laid down that where a finding of fact stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue, but in that event such a fact is required to be brought to light by the High Court, clearly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. In the present case, I have already mentioned that the learned appellate court below failed to consider that there was a presumption of correctness of entries in respect of finally published record-of-rights and the evidence should be such which can rebut such presumption. It should have further considered that on the face of the admission by P.W.1, one of plaintiffs that the suit plot originally belonged to a big raiyat who did not retain the suit plot and it stood vested in the State due to such non-retention, the urgency for searching out adequate evidence, for rebuttal, should be more in the instant case. The learned appellate court relied heavily on the report of the Commissioner, without considering whether such Commissioner was competent to submit any report regarding user of a particular plot of land without proper identification that the learned appellate court finding was not based on the evidence and other relevant circumstances disclosed in such evidence and that his ultimate finding that the plaintiffs and before them their predecessor-in-interest have been possessing the suit land for more than 60 years, was without any basis. No doubt all these indicate that the learned appellate court below failed to deal with the question at issue in its proper perspective and there was an element of perversity in his judgment. 10. In the result, the appeal succeeds. The appeal is allowed. The judgment and decree passed by the learned appellate court below are hereby set aside. The judgment and decree of the learned Munsif are hereby restored. Appeal allowed.