Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 723 (CAL)

Chandra Mohan Jana v. Arjun Chandra Jana

2011-05-19

TAPAN KUMAR DUTT

body2011
JUDGMENT 1. This Court has heard the learned Advocates for the respective parties. 2. The facts of the case, briefly, are as follows: - a) The plaintiffs/respondents filed T.S.95 of 1988 against the defendants/appellants and defendants/respondents which was placed before the learned 2nd Court of Munsif, Tamluk. The plaintiffs prayed for a declaration of title in 17½ decimals of land mentioned in ka schedule of plaint by way of inheritance and that the R.S. record-of-right is erroneous in respect of the said property and for permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs in the said property. The plaintiffs alternatively prayed for a decree for declaration that property described in Ga, Gha, Uma and Cha schedule properties are ejmali properties of plaintiffs and defendant No.1 and joint possession of the plaintiffs and the defendant No.1 be declared in respect of the said properties and the defendant No.1 be restrained by a decree of permanent injunction from disturbing the ejmali possession of the plaintiffs in respect of the said property. b) The plaintiffs’ case was, inter alia, that the kha schedule property to the plaint comprising of plot Nos.488, 490, 667 and 694, Khatian No.78 measuring 35 decimals at Tamluk originally belonged to one Adwaita Kumar Jana and after Adwaita’s death his sons, Iswar and Balaram, inherited the properties having 8 annas share each. On Iswar’s death his son Satyeswar inherited Iswar’s share and on Balaram’s death his minor son Nagendra inherited Balaram’s share. Kunjabala, Nagendra’s mother, sold Nagendra’s 8 annas share to Ram Chandra Jana, the father of the plaintiffs, by a registered deed dated 17.9.1919. Ram Chandra died in 1350 BS leaving behind the plaintiffs as his heirs. Satyeswar who had 8 annas share in the suit property sold 2 decimals of land in plot No.694 to plaintiff No.2 on 6.2.1967, 5 ½ decimals of land in plot No. 667 to defendants 5 and 6 in 1969 and 5 decimals of land in plot No.488 to defendant No.4 in 1970. On Satyeswar’s death his heirs and legal representatives sold his share in plot No.490 to defendant Nos. 2 and 3. Plaintiffs’ case was that the defendant Nos. 1 to 3 have no right, title and interest in Ka schedule property and that the defendant Nos. 2 and 3 are sons of defendant No.1. On Satyeswar’s death his heirs and legal representatives sold his share in plot No.490 to defendant Nos. 2 and 3. Plaintiffs’ case was that the defendant Nos. 1 to 3 have no right, title and interest in Ka schedule property and that the defendant Nos. 2 and 3 are sons of defendant No.1. Plaintiffs’ further case was that the defendant No.1’s name has been erroneously recorded in the R.S. record-of-right showing that the defendant No.1 has 4 annas share in kha schedule property and on the basis of such erroneous entry the defendants are denying plaintiffs’ title and threatened the plaintiffs with dispossession. c) The plaintiffs’ further case was that the defendant No.1’s father had no income when Kha schedule properties were purchased and in 1919 the defendant No.1’s father was separate in mess and in property. The plaintiffs’ case was that if the Court finds that on 17.9.1919 the plaintiffs’ father and the defendant No.1’s father were in joint family there was never any partition by metes and bounds between the plaintiffs’ father and the defendant No.1’s father and that it should be declared that the Ga, Gha, Uma and Cha schedule properties are ejmali properties of the plaintiffs and the defendant No.1 and that the entries in the R.S. record-of-right be declared erroneous. d) The defendant Nos. 1, 2 and 3/appellants contested the suit by filing written statement denying the material allegations made in the plaint and contended, inter alia, that the Ka schedule property was not the self-acquired property of Ram Chandra Jana, the father of the plaintiffs. The defendants/appellants’ case was that Ram Chandra Jana and Shyam Chandra Jana were two full brothers and they used to live in joint mess but Ram Chandra was the karta of the joint family and the Ka schedule properties were purchased in the name of Ram Chandra but out of the nucleus of the ejmali fund. The said defendants’ further case was that the defendant No.1 has 4 annas share in the Ka schedule properties which he has acquired by inheritance and the entries in the R.S. record-of-right regarding Ka schedule properties are correct and the defendant No.1 was a minor when his father died and in 1340 B.S his mother became separate in mess from the father of the plaintiffs. The said defendants’ further case was that the defendants had acquired title by adverse possession in respect of their share in the Kha schedule property. The defendants’ case was that there is no existence of the Ga schedule property as the same has submerged in the river bed but the same was purchased out of the joint ejmali fund of the father of the plaintiffs and the father of the defendant No.1. According to the said defendants Gha, Uma and Cha properties were purchased from the income of the defendant No.1 or his father and the plaintiffs have no ejmali right, interest and possession in respect of such properties. The said defendants alleged that after 1933(1340 B.S.) the mother of the defendant No1 and the defendant No.1 were not in joint family with the father of the plaintiffs and the defendants have also acquired valid title over Kha Schedule suit properties by adverse possession and the name of the defendant No.1 has been correctly recorded in the R.S. record-of-right regarding such properties and the plaintiffs are not possession of Ka, Ga, Gha, Uma and cha schedule properties and the suit is liable to be dismissed. e) The said suit came up for hearing and the learned Trial Court by judgment and decree dated 9th June, 1989 decreed the said suit on contest against the defendants 1,2 and 3 and ex parte against the rest and the plaintiffs’ right, title and interest in respect of Ka schedule lands of the plaint was declared and the defendants were permanently restrained from interfering with the peaceful possession of the plaintiffs in the Ka schedule lands. f) The learned Trial Court found that the plaintiffs have cause of action and the suit is maintainable in respect of Ka schedule lands but they have no cause of action in respect of Ga, Gha, Uma and Cha schedule lands and also the suit is not maintainable in respect of the Ga, Gha,Uma and Cha schedule lands of the plaint. According to the learned Trial Court the plaintiffs pleaded the denial of the defendants title and possession in respect of Ka schedule lands but no such pleading was there in respect of Ga, Gha, Uma and Cha schedules and by amendment no cause of action has been pleaded in respect of Ga, Gha, Uma and no cause of action has been pleaded by the plaintiffs in respect of the suit properties excepting the Ka schedule property. The learned Trial Court found that it has not been mentioned in the plaint as to whether the R.S. record-of-right in respect of Ga, Gha, Uma and Cha schedule lands were correct or wrong and the examination-in-chief of P.W.1 remained silent on this point but the P.W.1 admits them to be correct in cross-examination. The learned Trial Court has recorded that the P.W.1, on recall, stated in evidence that the Uma, Cha and Gha schedule lands were purchased from joint fund and those were not purchased by defendant No.1 alone but no papers have been filed to show that the said lands were purchased from the joint fund. The learned Trial Court found that it is admitted that the Kobalas regarding the Gha, Uma and Cha schedule lands stand in the name of the defendant No.1 and the P.W.1 has no personal knowledge about the purchase of Gha, Uma and Cha schedule lands. The learned Trial Court found that the D.W.1 has stated in evidence that he purchased Gha, Uma and Cha schedule properties by three kobalas and the R.S. records-of-right also stand in his name and the rent receipts adduced in evidence supports the case of D.W.1 in this regard. The learned Trial Court found that the plaintiffs are not entitled to get the alternative reliefs as prayed for in the plaint. g) The learned Trial Court found that 4 annas share in the Kha schedule of the plaint stands in the name of the defendant No.1 in the R.S. record-of-right and the entry in the R.S. record-of-right shall be presumed to be correct until it is proved to be incorrect and the onus lies upon the plaintiffs to rebut the presumption of the R.S. record-of-right. The learned Trial Court found that it is an admitted fact that Nagendra got Ka schedule lands, that is, half of Kha schedule lands and according to the plaint Kunja Devi, the mother of Nagendra, on behalf of Nagendra as his guardian sold Ka schedule lands to the plaintiffs’ father by a registered kobala dated 17.9.1919 and delivered possession to plaintiffs’ father (Ram Chandra Jana). The learned Trial Court found that Ext.1 being the original kobala executed by Kunja Devi in favour of Ram Chandra contains the Ka schedule lands and such document came from the custody of the plaintiffs and there is no reason to disbelieve the plaintiff’s’ case in this regard. The learned Trial Court relied upon the plaintiffs’ witness while coming to a finding that the defendants 1,2 and 3 never possessed the Ka schedule lands. The learned Trial Court found that the defendant has not adduced any evidence regarding the purchase of Ka schedule lands. The learned Trial Court found that D.W.1 admitted that he cannot say about the incident which took place before he was 12/13 years old and he was about 11 years old in 1933 and accordingly his evidence regarding the alleged separation cannot be relied upon. The learned Trial Court came to the conclusion that the evidence of the defendants’ witnesses did not help the defendants’ case in respect of the Ka schedule property and the learned Trial Court concluded that the plaintiffs have been able to prove their case in respect of the Ka schedule lands of the plaint. h) Being aggrieved by and dissatisfied with the aforesaid Trial Court’s judgment and decree the appellants preferred title appeal No. 48 of 1989 and said appeal was placed before the learned Assistant District Judge, Tamluk. The plaintiffs/respondents filed cross-objection. The learned Lower Appellate Court by judgment and decree dated 15th March, 1990 allowed the said title appeal and also the cross-objection which was filed by the plaintiffs and the said learned Court modified the Trial Court’s judgment and decree. The learned Lower Appellate Court declared that the plaintiffs have 8 annas share in Ka schedule property, that is, they have 4 annas share and interest in the aforesaid suit plot Nos. The learned Lower Appellate Court declared that the plaintiffs have 8 annas share in Ka schedule property, that is, they have 4 annas share and interest in the aforesaid suit plot Nos. 488,490, 667 and 694 and they had acquired such right by way of inheritance and the defendants were permanently restrained from disturbing the plaintiffs ejmali possession regarding the 8 annas share in Ka schedule properties till partition by metes and bounds. The learned Lower Appellate Court further declared that the Ga, Gha, Uma and Cha schedule properties are the ejmali properties of the plaintiffs and the defendant No.1 and that they have ejmali possession over these properties. The defendant No.1 was restrained permanently from interfering with the ejmali possession of the plaintiffs over these properties till there is a partition by metes and bounds. i) The learned Lower Appellate Court found that there is no doubt that the Ka schedule property originally belonged to Satyeswar and Balaram after the death of Adwaita and Iswar and in the record-of-right (Ext.3) names of Balaram and Satyeswar were recorded in respect of Ka schedule properties and after the death of Balaram his 8 annas share devolved upon the minor son Nagendra and the said Kunja Devi sold the Ka schedule property on behalf of Nagendra by a deed dated 17.9.1919(Ext.1) in favour of Ram Chandra Jana. The learned Lower Appellate Court found that in the R.S. record-of-right the Kha schedule properties were recorded in the name of Satyswar in respect of 8 annas share, in the name of the plaintiffs in respect of 4 annas share and in the name of the defendant No.1 in respect of 4 annas share. The learned Lower Appellate Court found that according to the R.S. record-of- right plaintiffs have only 8 annas share in Ka schedule property which is 4 annas share in the entire 4 plots. The learned lower Appellate Court found after recall in cross-examination P.W.1 has admitted that Ka schedule properties were purchased from the ejmali fund or from the joint family income and the written statement and evidence of D.W.1 also shows that Ka schedule properties were purchased from the nucleus of ejmali fund of the joint family. The learned lower Appellate Court found after recall in cross-examination P.W.1 has admitted that Ka schedule properties were purchased from the ejmali fund or from the joint family income and the written statement and evidence of D.W.1 also shows that Ka schedule properties were purchased from the nucleus of ejmali fund of the joint family. The learned Lower Appellate Court found it has been established that Ka schedule properties were not the self-acquired properties of Ram Chandra Jana and the entries in the R.S. record-of-right regarding the Ka schedule properties are, therefore, correct. The learned Lower Appellate Court found that the plaintiffs did not challenge the entries in the R.S. record-of -rights by filling any case under the provisions of Section 44 of the West Bengal Estate Acquisition Act. j) The learned Lower Appellate Court found from the evidence of P.Ws. 1,2 and 3 that the defendants have also possession in the Ka schedule property and from the evidence of D.W.1 and 2 it is also clear that the defendants have possession in respect of their 4 annas share over the Ka schedule property. The learned lower Appellate Court came to a finding that the plaintiffs are entitled to only 8 annas share in the Ka schedule and it should be declared that the plaintiffs have 4 annas share in the suit plot Nos. 488, 490, 667 and 694. k) The learned Lower Appellate Court found that it is clear from the R.S. record-of-right (Ext.5 series and Ext.H series) that Gha, Uma and Cha properties have been recorded in the name of the defendants No.1 and the deeds in respect of the said properties stand in the name of the defendant No.1. The said learned Court also found that the Ga schedule properties were purchased in 1924 from joint family fund and it has not been established when there was severance of joint family status and that the Ext.1 (c) (deed of 1949) shows that till that date the family of the plaintiffs and the defendants were joint in property and there is no evidence that there was any partition according to law between the co-sharers and according to the learned Lower Appellate Court all the properties acquired by the Jana family are still ejmali properties and there was no effective partition in between the co-sharers. The learned Lower Appellate Court found that the P.W.1, P.W.2, P.W.3, P.W.4, D.W.1, D.W.2. The learned Lower Appellate Court found that the P.W.1, P.W.2, P.W.3, P.W.4, D.W.1, D.W.2. D.W.3, D.W.4 and D.W.5 were not competent to prove that the mother of the defendant No.1 became separate from the family of the father of the plaintiffs and there was severance of joint family status in 1340B S. The learned Lower Appellate Court, however, found that only because the name of the defendant No.1 was recorded in the record-of-right regarding Gha, Uma and Cha schedule properties and that the plaintiffs did not participate in payments of rents in respect of such properties it will not prove that such properties are properties of the defendant and the plaintiffs have lost all their rights and interest in such properties. The learned Lower Appellate Court considered the case of the defendant No.1 that he was 4/5 years old when his father died and, therefore, in 1340BS he was hardly a boy of 9/10 years old and the Gha, Uma and Cha schedule properties were purchased between 1347-1350B.S when the said D.W.1 was only 17 to 19 years age and there is no evidence as to how he used to earn and what was his source of income and there is also no evidence with regard to any income of the mother of the defendant No.1. The learned Lower Appellate Court found that there is no evidence that the mother of the defendant No.1 had separate income to maintain the family after severance from joint family. The learned Lower Appellate Court disbelieved the D.W.1’s evidence regarding the severance of joint family and the acquisition of Gha, Uma and Cha properties from any personal income. The learned Lower Appellate Court also recorded that the defendant No.1 has admitted that the plaintiffs have share in plot No. 457 and this plot is included in Uma schedule of the plaint and from Ext.5 and H series it appears that against some of the plots plaintiffs’ share of 4 annas have been recorded and against some other plots 2 annas share has been recorded and, this signifies that there was no partition nor severance of joint family status. l) The learned Lower Appellate Court came to the conclusion that all the properties in the suit are ejmali properties of the plaintiffs and defendants and the entries in the R.S. record-of-right in respect of Ga, Gha, Uma and Cha schedule properties are not correct and the defendant failed to prove that in 1340 B.S when the defendant No.1 was a minor his mother became separate from the joint family. The learned Lower Appellate Court passed the impugned judgment and decree by coming to the conclusions and the findings as indicated above. m) The defendant Nos. 1,2 and 3/appellants have preferred the present second appeal being S.A. No. 229 of 1996 challenging the aforesaid judgment and decree of the learned Lower Appellate Court. 3. The following are the substantial questions of law which have been formulated on which the appeal was heard: (i) Whether or not the learned Lower Appellate Court was wrong in declaring the plaintiffs’ ejmali right in Ga to Cha schedule property when the plaintiffs had pleaded that the defendant No.1’s father was separate in mess since 1919. (ii) Whether or not the learned Lower Appellate Court was justified in putting emphasis upon non-severance of the joint status of the family while determining the character of the joint property when there is no finding regarding the nucleus of the joint property out of whose income Ka to Cha schedule property could have been acquired. (iii) Whether or not the learned Lower Appellate Court was right in granting a decree for injunction against the co-sharers even if it is assumed for the sake of argument that the plaintiffs have a share in the joint undivided property. (iv) Whether or not the learned Lower Appellate Court was right in putting the onus upon the defendants to prove that Gha to Cha schedule properties were self-acquired properties of the defendant No.1 whereas the onus should be on the plaintiff to prove that the said properties are joint family properties. (iv) Whether or not the learned Lower Appellate Court was right in putting the onus upon the defendants to prove that Gha to Cha schedule properties were self-acquired properties of the defendant No.1 whereas the onus should be on the plaintiff to prove that the said properties are joint family properties. (v) Whether or not the learned Lower Appellate Court committed an error in not taking into consideration the effect of vesting of the properties under the West Bengal Estate Acquisition Act and whether or not the learned Lower appellate Court was a right in holding that the defendants-co-sharers who are in possession of the joint properties would be constructive trustees of the plaintiffs and also whether or not the learned Lower Appellate Court committed any error in not dismissing the suit as not maintainable. 4. This Court has heard the learned Advocates for the respective parties and has considered the materials on record. 5. At the out-set it may be recorded that the learned Advocate for the appellants has pointed out that with regard to the Ga schedule property the defendants’ case was that such property does not exist as it has very likely submerged in the river. 6. The aforesaid ground No. (V) is taken up for consideration. The learned Advocate appearing on behalf of the appellants submitted that the learned Court below did not take into consideration the effect of vesting of the lands under the West Bengal Estate Acquisition Act, 1953. He referred to Section 6 of the said Act of 1953 and also a decision reported at 2006(3) CHN 1 (Tarumoni Mondal & Ors. V. Prafulla Kumar Mondal & Ors.). He cited the said reports in support of his submission that the co-sharership comes to an end from the date of vesting and the entire interest of the parties vest in the State subject to the right of retention by the owners. V. Prafulla Kumar Mondal & Ors.). He cited the said reports in support of his submission that the co-sharership comes to an end from the date of vesting and the entire interest of the parties vest in the State subject to the right of retention by the owners. The Hon’ble Court in the said reports held that there is no doubt with the proposition of the law that co-sharership comes to an end from the date of vesting and after the date of vesting the persons who were previously co-sharers cannot be said to be co-sharers any further and the retention of any land by one of such persons is solely on his behalf and not on behalf of another person who was a co-sharer at an earlier point of time before vesting. He referred to Section 6 of the said Act of 1953 in support of his contention that a person in khas possession can retain lands. The learned Advocate appearing on behalf of the plaintiffs/respondents submitted that in the present case the question of vesting does not arise as there was no excess land beyond the he ceiling limit and there is no evidence on record regarding vesting and/or retention of land by the owners/co-owners or whether the lands held were beyond the ceiling limit. He further submitted that the defendants did not adduce any evidence with regard to any alleged vesting of any land. The said learned Advocate further submitted that the decision reported in 2006 (3) CHN 1 cannot be applied in the facts of the present case since in the present case the Ka schedule property stands in the name of the plaintiffs’ father only. He also submitted that there is nothing on record to show that any notice was served under Section 6(5) and/or under Section 10(2) of the said Act of 1953. 7. It, therefore, appears that the learned Lower Appellate Court did not commit any error in not taking into consideration the effect of the alleged vesting of properties under the said Act of 1953 as such point was not canvassed before the said learned Court and there is no material on record with regard to the question of vesting of properties under the said Act of 1953. The learned Advocate for the plaintiffs/respondents has cited certain decisions reported at 75 CWN 228(Mohan Lal Gupta V. Achhulal Saha), 80CWN 42(Lakshmi Narayan Roy & Ors. V.Land Reforms Officer & Ors.), 88CWN 485(Krittibus Bhattacharya & Ors. V. State of West Bengal & Ors.) and 2008(2) CLJ (CAL) 159 (Gour Gopal Dutta & Anr. V. State of West Bengal & Ors.) in connection with some of the provisions of the West Bengal Estate Acquisition Act, 1953 but it is not necessary for this Court to discuss in details the said reports in view of the fact that this Court is not in a position to go into the question of the alleged vesting of lands under the said Act of 1953 in the absence of any materials on record in this regard. 8. Now, the ground Nos. I to IV are taken up for consideration. At the very out-set it would be better to take note of the decision reported at AIR 2003 Supreme Court 3800 (D.S. Lakshmaiah and another V. L. Balasubramanyam and another) which has been cited by the learned Senior Advocate for the appellants. Paragraphs 7 and 8 of the said reports are as follows: “7. The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property or self-acquired property of the first appellant. 8. There was evidence and it has been established that item No. 2 measuring 15 guntas of land was joint Hindu family property but, admittedly, no evidence has been led that the said joint Hindu family property was yielding any income or that any nucleus was available with the aid whereof item No. 1 property could be purchased by the first appellant. Admittedly, no evidence has been led on behalf of the respondents/plaintiffs to show income from item No.2 property or value of the property. At the same time, no evidence has also been led by the first appellant to prove that he had any separate income so as to acquire item No.1 property. In absence of evidence either way which party would succeed and which fail, is the question. The legal position is well-settled as we will presently notice.” Paragraphs 17 and 18 of the said reports are quoted below: “17. In absence of evidence either way which party would succeed and which fail, is the question. The legal position is well-settled as we will presently notice.” Paragraphs 17 and 18 of the said reports are quoted below: “17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from item No.2 property and no other nucleus was claimed, the burden remained on the respondents to establish that item No.1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents claim of item No.1 to be joint family property would fall as rightly held by the first appellate Court. 18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” 9. From the above reports it is clear that the person who asserts that a property is a joint family property will have to prove the same and only when such person proves that there was a nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would then shift on the person who claims it to be a self-acquired property to prove that he purchased the property with his own funds and not out of the joint family nucleus that might have been available. It is also clear that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. It is also clear that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. In the plaint, the plaintiffs/respondents had pleaded that in the year 1919 the father of the defendant No.1 was separate in mess and also in property. Neither, the learned Advocate for the appellants nor the learned Advocate for the plaintiffs/respondents have been able to show from the records that there is any finding by the learned Lower Appellate Court that there was any existence of any nucleus and/or any income from any joint family property out of which any of the properties in suit could have been purchased. The defendants/appellants could not prove any such nucleus and/or income from any joint family property with which the Ka schedule properties could have been purchased by the parties jointly. The plaintiffs/respondents also could not prove that there was any such nucleus and/or income from any joint family property out of which the Ga, Gha, Uma and Cha schedule properties could have been purchased by the parties jointly. 10. The learned Lower Appellate Court proceeded on the basis that since the parties had lived together as joint Hindu family the presumption of the properties being joint family properties would arise accordingly. The Hon’ble Supreme Court has been pleased to observe in the aforesaid reports that the legal principle is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. 11. The learned Advocate for the appellants has submitted that the plaintiffs/respondents did not take any steps under the West Bengal Estate Acquisition Act to challenge the records-of-rights concerned in respect of the Ka schedule properties and the learned Advocate for the plaintiffs/respondents has submitted that the defendants/appellants have not challenged the deed of conveyance by which the father of the plaintiffs had purchased the Ka schedule properties. The learned Advocate for the plaintiffs/respondents has cited a decision reported at 93CWN 700 (Sital Chandra Das & Ors. V. The State of West Bengal & Ors.) wherein it was held that there can be no reason for not entertaining a prayer for correction of the records-of-rights in conformity with Civil Court’s judgment and decree and disposing of the same within a reasonable time. V. The State of West Bengal & Ors.) wherein it was held that there can be no reason for not entertaining a prayer for correction of the records-of-rights in conformity with Civil Court’s judgment and decree and disposing of the same within a reasonable time. It was further held in the said reports that the entries in the finally published records-of-rights under the West Bengal Estates Acquisition Act at best give rise to rebuttable presumption and where judgments of Civil Courts exist and are found to be inconsistent with such entries in the records of rights such presumption should be deemed to have been rebutted and no difficulty should be felt in incorporating the correction in conformity with the Civil Court’s judgment and decree. Thus, it cannot be said that only because the plaintiffs/respondents have not taken any steps under the West Bengal Estates Acquisition Act for challenging the records of rights in respect of the Ka schedule property the defendants 1,2,3 have in any way become co-owners in respect of the said Ka schedule property. The Ka schedule property stands exclusively in the name of the father of the plaintiffs/respondents and the mere entry in the records of rights cannot confer any kind of ownership in favour of the defendants 1,2,3. 12. The learned Advocate for the appellants has referred to the decision reported at AIR 1972 Cal 502 (Madan Mohan Ghosh and others V. Sishu Bala Atta and others) while making his submissions with regard to vesting and the provisions concerned in the West Bengal Estates Acquisition Act, 1953 but since this Court has already held, as indicated above, that there is no material on record regarding the question of alleged vesting, this Court is unable to go into such question in the present second appeal. However, in Paragraph 19 of the said reports some observation has been made with regard to the presumption which arises under sub-Section (4) of Section 44 of the said Act of 1953. The Hon’ble Court was pleased to observe that the presumption which arises under Sub-Section (4) of Section 44 of the said Act of 1953 cannot be held to have the effect of nullifying the provisions of the Act. The Hon’ble Court was pleased to observe that the presumption which arises under Sub-Section (4) of Section 44 of the said Act of 1953 cannot be held to have the effect of nullifying the provisions of the Act. Their Lordships were unable to accept the contention that because the finally published records-of-rights were modified in accordance with Section 47 read with Rule 31-A of the Rules the holding continued to be joint holding and the Raiyats continued to be co-sharers of each other. It appears that in the said reported case the rivisional records-of-rights concerned included the names of all the Raiyats of the holding concerned and it was sought to be argued before the Hon’ble Court that in view of Sub-Section (4) of Section 44 of the said Act of 1953 the entries would raise a presumption that the holding is a joint holding held by the Raiyats jointly. The decision in the said reports, however, does not help the defendants/appellants. The arguments made by the learned Advocate for the appellants that one can conclude that the plaintiffs and the defendant No.1 were co-sharers in respect of the Ka schedule property on the basis of the records-of-right is not acceptable to this Court. The learned Advocate for the plaintiffs/respondents cited a decision reported at AIR 1968 Cal 245 (Manick Lal Singh V.Gouri Sankar Shah) in support of his contention that mere separation in mess will not make the family divided if they had joint property. He cited another decision reported at AIR 1964 Supreme Court 136 (A. Raghavamma and another V. A. Chenchamma and another) in support of his contention that when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. It is not necessary to discuss any further the aforesaid two reported cases since this Court has already found, as indicated above, that none of the parties have been able to prove that there was any nucleus or income from any joint family property out of which any of the properties in suit could have been purchased. The learned Advocate for the respondents/plaintiffs also cited a decision reported at AIR 1981 Supreme Court 77 (Karbalai Begum V. Mohd. Sayeed and another). The learned Advocate for the respondents/plaintiffs also cited a decision reported at AIR 1981 Supreme Court 77 (Karbalai Begum V. Mohd. Sayeed and another). It has been observed by the Hon’ble Court that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession. It appears that the said reports was also cited before the learned Lower Appellate Court as it appears that submission was made that the defendant No.1 had paid the rents and taxes in respect of the Gha, Uma and Cha schedule properties and the plaintiffs did not participate in the payment of such rents and taxes. 13. From the discussion made above, it would appear that the learned Lower Appellate Court ran into error by holding that the plaintiffs have 8 annas share in the Ka schedule property and the Ga, Gha, Uma and Cha schedule properties to the plaint are the ejmali properties of plaintiffs and the defendant No.1. In view of the discussions made above, this Court is of the view that the question of such ejmali properties does not arise in the present case. This Court is of the view that the learned Trial Court was right in decreeing the suit to the extent that the plaintiffs’ right title and interest in respect of Ka schedule properties to the plaint were declared and the defendants were permanently restrained from interfering with the peaceful possession of the plaintiffs in respect of such Ka schedule properties. The plaintiffs/respondents are not entitled to the alternative prayers made by the plaintiffs/respondents in respect of the Ga, Gha, Uma and Cha schedule properties. Since this Court is not inclined to grant any relief to the plaintiffs/respondents in respect of their alternative prayer, as indicated above, made in the plaint, the question of there existing any decree for injunction in favour of the plaintiffs against the defendants in respect of the Ga, Gha, Uma and Cha schedule properties does not arise. Since this Court has already come to a finding that the plaintiffs/respondents are not entitled to any decree in terms of their alternative prayer in respect of the Ga to Cha schedule properties made in the plaint the ground No. IV, as indicated above, loses its importance. 14. Since this Court has already come to a finding that the plaintiffs/respondents are not entitled to any decree in terms of their alternative prayer in respect of the Ga to Cha schedule properties made in the plaint the ground No. IV, as indicated above, loses its importance. 14. In view of the discussions made above the present second appeal is allowed by setting aside the judgment and decree dated 15th March, 1990 passed by the learned Assistant District Judge, Tamluk in title appeal No. 48 of 1989 and restoring the judgment and decree dated 9th June, 1989 passed by the learned second Munsif, Tamluk in title suit No. 95 of 1988. This Court also holds that the plaintiffs/ respondents are not entitled to the alternative prayer made in their plaint in respect of Ga, Gha, Uma and Cha schedule properties. 15. There will, however, be no order as to costs. 16. Urgent Certified Xerox copy of this Judgment, if applied for, be given to the parties on compliance all necessary formalities.