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2005 DIGILAW 201 (CAL)

JAHAR ALI MONDAL v. MD. HAZI AMIR ALI

2005-03-23

JYOTESH BANERJEE

body2005
JYOTESH BANERJEE ( 1 ) THE instant appeal from the appellate decree is from the judgment dated 14. 6. 90 and the decree thereof passed by the Additional District Judge, 1st Court, Barasat in the District of 24-Parganas (N) through which the learned appellate Court below dismissed the appeal (T. A. No. 251 of 1988)and affirmed judgment and decree passed by Munsif, 2nd Court, Barasat in T. S. No. 480 of 1973. ( 2 ) THE plaintiff/respondent brought the suit for declaration of title and permanent injunction, inter alia, contending that the properties described in schedule 'ka' to the plaint measuring 13. 15 acres of land in C. S. Khaitan No. 113 of Mouza Abarberia in P. S. Habra were the rayati properties of Chhepatulla mondal, Joynal @ Joynur Bibi, Tahiran Bibi and Sarifan Bibi underthe landlords jagat Prosanna Mukhopadhaya and others. The co-sharers/tenants amicably partitioned the properties amongst themselves and pursuant to such amicable partition, were duly recorded in C. S. Khaitan No. 113 indicating exclusive separate possession in respect of specific plots and ejmali possession in respect of some other plots. It was further alleged that Sarifan Bibi by an oral Heba transferred her properties described in Schedule 'kha to the plaint to her only daughter Tahiran and by virtue of such oral Heba Tahiran became the owner of 'kha' schedule properties and the said Tahiran started to possess the same. Tahiran Bibi died leaving behind 3 sons, namely Amir Ali, the plaintiff Meher Ali and Jahar Ali (defendant No. 1), 3 daughters, defendant Nos. 2 to 4. Meher Ali died leaving behind him his two wives defendant Nos. 5 and 6, his 2 brothers (plaintiff and defendant No. 1) and his 3 sisters, defendant Nos. 2 to 4. It was alleged that in the R. S. R. O. R. the suit property was not properly recorded indicating the actual shares of the heirs of Tahiran. It was alleged that the defendant No. 1 was entrusted with the responsibility of getting the properties properly recorded in R. S. R. O. R. Taking advantage of this trust defendant No. 1 got some erroneous entries made in the R. S. R. O. R. It was further alleged that in spite of such wrong entries, the plaintiff is in possession of kha schedule properties. The defendant No. 1 in collusion with the other defendants tried to dispossess the plaintiff. The defendant No. 1 in collusion with the other defendants tried to dispossess the plaintiff. In that background, the plaintiff was constrained to file the suit praying for a declaration of his title in 'kha' schedule property and a decree for permanent injunction. ( 3 ) THE defendant No. 1, defendant No. 2 and defendant No. 4 contested the suit by filing different written statements. It was mainly contended by the contesting defendants that the jama of C. S. Khatian No. 113 long extinguished and there was no existence of the same. Sarifan bibi had transferred some of her properties to her grand son (defendant no. 1), some properties to her another grand-son Meher AM, and some properties to her son-in-law, Abbus Ali and some properties to her daughter, tahiran Bibi. The plaintiff after his marriage went to reside at his father-in-law's place and acquired properties there from his father-in-law. In the R. S. R. O. R. , the shares of the parties in the suit properties have been correctly recorded. The learned Munsif in his judgment has pointed out that the defendant No. 1's plea that he got the suit property by an oral Heba made by Abbas Ali Mondal was not true. He further held that the oral gift was not valid as per provisions contained in Section 26 (c) of the Bengal Tenancy act, the Act which was prevalent at the time of such alleged oral gift. Therefore, the plaintiff of the suit as one of the sons of the owner of the suit property Abbas Ali Mondal inherited the claimed share in the suiti property left by the said owner Abbas Ali Mondal and R. S. R. O. R. in respect of the suit property was erroneous. On such findings, learned Munsif decreed the suit. By declaring plaintiffs right, title and interest over 1. 44 acres of land in the 'kha' schedule property of the plaint and by restraining the defendants permanently from interfering with the peaceful joint possession of the plaintiff in 'kha' schedule property. The learned Appellate Court below found that the properties described in the schedule 'kha' to the plaint were the suit properties of the present suit. Admittedly those properties belonged to sarifan and Tahiran jointly and after the death of Sarifan her share was inherited by her daughter Tahiran. The learned Appellate Court below found that the properties described in the schedule 'kha' to the plaint were the suit properties of the present suit. Admittedly those properties belonged to sarifan and Tahiran jointly and after the death of Sarifan her share was inherited by her daughter Tahiran. The parties of the suit as heirs to Tahiran inherited the suit properties as per the respective share. The learned Judge further noted that it was also not disputed that the properties in 'ka' schedule of which 'kha' schedule properties was a portion, belonged to Sarifan, tahiran and Chhepatulla and Jaynal Bibi. The defendants were unable to produce anything in support of their case that the said tenancy was lost and the fresh settlement was taken by the father of the plaintiff and defendants. In that background, the learned Appellate Court below further held it should be presumed that the tenancy as recorded in the C. S. Khatian continued and the right devolved upon the heirs of the recorded tenants in accordance with law. The learned appellate Court further observed that in the written statement, the contesting defendants had advanced a case of ouster and adverse possession. But no evidence was adduced during trial on their behalf and there was no pleading in their written statement as to how the plaintiff was ousted from the suit properties. The defendants merely tried to show that the plaintiff was not in the good book of his father and plaintiff used the reside at his father-in-law's place and as such he was divested of the suit properties. The learned Appellate Court noted that mere staying away from the suit properties even for more than statutory periof would not disentitle a co-sharer from his right over the suit property. So even if it was presumed that the plaintiff did not reside in the suit village or did not physically possess the suit property, that fact itself would not conclusively prove that his right in the suit properties was extinguished. The learned Appellate Court further pointed out that an argument was advanced on behalf of the plaintiff that the R. S. R. O. R. was prepared at the instance of the contesting defendants and the plaintiff was not aware of the entries in the R. S. R. O. R. But this fact was never proved by the plaintiff. The learned Appellate Court further pointed out that an argument was advanced on behalf of the plaintiff that the R. S. R. O. R. was prepared at the instance of the contesting defendants and the plaintiff was not aware of the entries in the R. S. R. O. R. But this fact was never proved by the plaintiff. On the other hand, the plaintiff in his evidence stated that he was possessing his property according to his share in the R. S. R. O. R. But the learned appellate Court at the same time also recorded that on consideration of the entire evidence of the plaintiff as P. W. 1, his solitary statement in his evidence that he was aware of the entries in the R. S. R. O. R and he was possessing the suit property as per R. S. R. O. R. should not be taken as an admission on his part. Specially when the defendants failed to prove that the plaintiffs interest in the suit property was extinguished. On such findings, the appellate court below dismissed the appeal and affirmed the judgment and decree passed by the trial Court. ( 4 ) AT the time a admission of the Second Appeal, the learned Division bench did not formulate the substantial questions of law involved in the present appeal. In that background, when I took up hearing of the second appeal, the following questions were formulated as the substantial questions of law involved in this appeal by order dated 1. 2. 2005 :- (i) Whether the findings of the Courts below were vitiated for not giving effect to the well-known principles of law that in a conflict between the entries of two records of right later would prevail. (ii) Whether the judgments of the Courts below wrongly put the entire onus of proof of tenancy upon the defendant No. 1. The learned Counsel for the petitioner Mr. Roychowdhury has submitted that in a conflict between two R. O. R. later will prevail and both the Courts below committed an error in appreciating the evidence on record by discarding this well settled law. It is futther contended that under Section 44 (3) of the West Bengal Estate Acquisition Act read with Rule 36 of the w. B. E. A. Rules, provide a particular tenancy recorded under the aforesaid provision is correct, unless the contrary is proved. It is futther contended that under Section 44 (3) of the West Bengal Estate Acquisition Act read with Rule 36 of the w. B. E. A. Rules, provide a particular tenancy recorded under the aforesaid provision is correct, unless the contrary is proved. In support of his first contention Mr. Roychowdhury has referred the decision in Shri Raja Durga singh of Solan v. Tholu and Ors. reported in AIR 1963 SC 361 . In respect of the second contention, the learned Counsel has referred the case of shikharch and Jain v. Dlgamber Jain Praband Karini Sabha and Ors. reported in 1974 (1) SCC 675 . It is also contended that the misplaced onus as it has been done in the present case can be entertained in second appeal. ( 5 ) MR. Sahoo, learned Counsel for the respondent on the other hand has contended that the defendant of the suit must prove that he got the property by way of Heba (oral gift) and not by way of inheritance. If he inherited along with other heirs of his father then the suit property cannot be recorded in the way as recorded in the R. S. It is contended that in the event, the defendant is in a position to establish that he got the property exclusively through the oral gift and then the R. S. recording would be justified. But in case of inheritance from father then the defendant cannot get the property exclusively to the exclusion of the other heirs like the plaintiff. it is further contended that there cannot be any oral transfer of land which would be contrary to the provisions contained in Section 17 of the Registration Act and no oral transfer of land can be made as rightly observed by the Courts below. It is further contended the question of onus becomes without any importance when both the parties adduce evidence and in this respect he has referred to Section 102 of the Evidence Act. The learned Counsel has contended further that no doubt a finally published record of rights raises presumption of its correctness but when the matter is investigated by the Civil Court and the parties adduce their evidence on the point in controversy, the entry loses its weight when the evidence discloses no foundation for it. The learned Counsel has contended further that no doubt a finally published record of rights raises presumption of its correctness but when the matter is investigated by the Civil Court and the parties adduce their evidence on the point in controversy, the entry loses its weight when the evidence discloses no foundation for it. In this connection he has referred a decision of the Division Bench of this Court reported in 32 CWN Page 135 (Rai Kiran chandra Roy Bahadur and Ors. v. Srinatr Chakraborty and Ors. ). The learned counsel has argued that presumption of correctness arising out recording of the name of a person in the finally published record of rights is a rebuttable presumption and here the question would be whether through the facts and circumstances of the case and evidence on record such presumption is rebutted or not. He has further submitted that the if the presumption arising out of record of rights is in favour of the plaintiff and he relies upn that presumption, he has a discretion to rely upon that presumption alone without bringing any evidence on his side. If he likes, he can adduce evidence to satisfy the Court that there are foundations behind such recording. It case the plaintiff relies solely upon the presumption in his favour without adducing any evidence, there is no doubt it is for defendant to rebut that presumption by adducing evidence to the satisfaction of the Court but in a case where the plaintiff goes to show the basis of the correctness of the record of rights and the other side affected by the record of rights adduces evidence to disprove the correctness of the statement appearing in the record of rights, the Court is entitled to consider the evidence of both the parties and to ascertain which of the versions of the fighting parties should be accepted, in this respect, the learned Counsel has referred to a very old decision of this Court reported in 31 CWN Page 142 (Nanda Lal Ganguly v. Sm. Nrity kali Devi ). Nrity kali Devi ). ( 6 ) IN this case as it is seen from the substantial questions of law formulated in connection with the hearing of the appeal, the point is whether the Courts below committed error for not giving effect to the well-known principles of law that in a conflict between the entries of two records of rights later would prevail. In the case of Shri Raja Durga Singh of Solan v. Tholu and Ors. (supra) relied on by the appellant, the Supreme Court in para 8 of the judgment made the following observation, which relevant here :-"it is sufficient to say that where there is such a conflict, it is the latter entry which must prevail. Indeed from the language of section 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry. "the learned Counsel for the appellant also referred the case of Rani harshamukhi Dasi v. Kshitindra Deb Roy and Ors. , reported in 47 CWN 662. Wherein strong reliance was placed by the appellant on the presumption as to the correctness of the entry in the record of rights in favour of such appellant. It transpires from that decision that the learned Judge opined that a party relying on the presumption arising from the record of rights is not bound to adduce evidence in support of the entry and the entry cannot lose weight it the evidence does not disclose that there is foundation for it. Now considering the respective submissions made on behalf of both the sides and the decisions cited, it is evident that finally published record of rights gives rise to a presumption of its correctness, but such presumption is rebuttable. It is also settled law now that if the person who is relying on the correctness of the finally published record of rights does not lead any evidence, then the party which has alleged that the finally published record of rights is not correct must lead evidence to show that such finally published record of rights has got no foundation. It is also settled law now that if the person who is relying on the correctness of the finally published record of rights does not lead any evidence, then the party which has alleged that the finally published record of rights is not correct must lead evidence to show that such finally published record of rights has got no foundation. But if the person who relies on the record of rights lead evidence then the initial onus is upon him to show and to satisfy the Court that there are foundations in support of the presumption of correctness. In the instant case, it is seen from the discussion above, the suit properties described in schedule 'kha' to the plaint belonged to sarifan Bibi and her only daughter Tahiran Bibi. It has been alleged that the said Sarifan Bibi by an oral Heba transferred 'kha' schedule property to her only daughter Tahiran Bibi. But that oral gift is not material here in view of the admitted position of law that the oral gift of Heba was not permissible under the law and this particular finding of the Courts below has never been challenged before this Court. Tahiran became the owner of 'kha' schedule property after the death of her mother. She died leaving behind 3 sons Amir Ali, the plaintiff, Meher Ali and Jahar Ali, the defendant Nos. 1 and 3 daughters, defendant Nos. 2 to 4. Meher Ali one of the sons died leaving behind two wives defendant Nos. 5 and 6 in suit and also his two brothers plaintiff and defendant No. 1 and three sisters defendant Nos. 3 to 4. It was alleged that defendant No. 1, the brothers of the plaintiff had the responsibility of getting the properties properly recorded during R. S. operation and taking that opportunity he got some erroneous entries made in the R. S. R. O. R. Now if the property belonged to mother of the parties, namely, Tahiran Bibi, it would be natural that on her death, the property would ordinarily devolve upon her successors children and the plaintiff admittedly is one of the sons of the said Tahiran Bibi. The Courts below have correctly pointed out that the alleged oral gift made by mother of tahiran, namely, Sarifan Bibi in favour of defendant No. 1 one of her grand sons and Meher All the other grand son and also others was not valid. Learned Appellate Court below also pointed out that the plea taken by the contesting defendants that the plaintiff, one of the son of Tahiran Bibi used to reside at his father-in-law's place where he got some properties of his father-in-law and as such he was divested of the properties cannot be accepted as mere staying away from the suit properties even for more than statutory period would not disentitle a co-sharer from his right over the suit property. In the suit both the parties have adduced evidence in support of their respective claims so in the light of the reported decisions cited in connection with the appeal it can be said that R. S. R. O. R. , which is the later record of rights, raised a presumption of correctness about the entries made in such R. O. R. But such presumption is rebuttable and in this instant case since the defendant also leds evidence a duty is cast upon the defendant to show that R. S. R. O. R. is based on a clear foundation. The learned Appellate Court after discussing the evidence on record has come to the conclusion and in the facts and circumstances of the case, the presumption of correctness has been rebutted for the simple reason that the plaintiff's right to property in the suit land cannot be extinguished because of his long absence from that place as admittedly plaintiff is one of the co-sharers of the defendants in respect of the suit property. Therefore, here the position is that no doubt finally published R. S. R. O. R. raised a presumption of correctness of such record of rights, but in the facts and circumstances that presumption has been rebutted and the learned Courts below did not commit any error by pointing out that the defendants in the circumstances of the case failed to prove that the plaintiff's interest on the suit property was extinguished. I accordingly answer both the substantial questions of law formulated in connection with the hearing of the appeal in negative. ( 7 ) IN the result, the appeal fails and it is dismissed. I accordingly answer both the substantial questions of law formulated in connection with the hearing of the appeal in negative. ( 7 ) IN the result, the appeal fails and it is dismissed. But having regard to the facts and circumstances of the case I make no order as to cost. Let l. C. R. be returned to the appellate Court below with a copy of this judgment.