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2013 DIGILAW 188 (GAU)

Sri Sukhendu Bikash Saha v. Smt. Bijoy Laxmi Saha

2013-03-13

S.TALAPATRA

body2013
S. Talapatra, J.—Against the judgment and decree dated 11.11.1998 passed in Title Appeal No. 01 of 1998 (hereinafter referred to as the impugned judgment) by the Additional District Judge, South Tripura, Belonia, this appeal u/s 100 of the Code of Civil Procedure, 1908, the CPC in short has been preferred by the defendant in the suit. The respondent instituted a suit being Title Suit No. 16 of 1995 for declaration of title and recovery of possession of the suit land as described in the schedule 'B' of the plaint which is excerpted hereunder for purpose of appreciation: LAND OF SCHEDULE "B" (SUIT LAND) Out of "A" schedule lands, land measuring 20 acres i.e. 10 gandas of land. BOUNDARY OF THE SUIT LAND North : Jagadish and others, South:-- Road, East :- Plaintiff's and others, West:-- Defendant, Within this boundary land measuring 20 acres i.e. 10 gandas as under R.S. Plot No. 3098. It surfaces from the records that the father of the respondent namely, Jogendra Kr. Saha was possessing the land described in the schedule "A" of the plaint after clearing jungles and bushes for 20-25 years. Thereafter made it fit for cultivation, orchard etc. On making huge expenditure he planted fruit-bearing trees such as banana, mango, jack fruit, coconut, betel nut etc. surrounding inside the "A" schedule land and he used to cultivate the rest of the land for growing paddy, chan and vegetables' etc. He was enjoying the usufructs from the said land without any disturbance from any corner. In the year 1975 the land was allotted in his favour by the Government of Tripura and khatian No. 1187 was opened in his name. In the year 1979, father of the plaintiff died leaving the plaintiff as his only heir and successor and the plaintiff stepped into the shoes of his father and started possessing the suit land in the same manner. In the course of the revisional survey and operation in the year 1982 the schedule "A" land was recorded in Parcha No. 1187, Plot No. 3094, 3112, 3095, 3098 and 3107 measuring 3.01 acres of Mouja-West Charakbai. It has been stated in the plaint that on 28.08.1988 corresponding to 11.05.1995 B.E. the defendant forcibly entered into a part of the "A" schedule land disregarding the protest raised by the plaintiff and dispossessed her from the land described in the schedule "B", the suit land. It has been stated in the plaint that on 28.08.1988 corresponding to 11.05.1995 B.E. the defendant forcibly entered into a part of the "A" schedule land disregarding the protest raised by the plaintiff and dispossessed her from the land described in the schedule "B", the suit land. The plaintiff on 27.06.1995 received the copy of the finally published revisional survey khatian No. 897 of the said schedule "A" land and she found to her utter dismay that Plot No. 3098 as allotted to her predecessor is embraced by an entry in Column No. 24 of the record of right to the effect that "possession of Sukhendu Bikash Saha, S/o. Aparna Saha from the year 1385 B.5 on transfer in violation of Section 14(1)". The said entry in the column No. 24 according to the plaintiff was false as the defendant never possessed the suit land before the said dispossession. The plaintiff did know nothing about the record in the khatian against Plot No. 3098 and only on 27.06.1995 she learnt about it after receipt of the copy of the finally published khatian. It has been asserted further that for correction, she would take necessary legal action. She made all sorts of endeavours for recovering the dispossessed land but all were frustrated by the defendant, thus the suit was instituted for recovery of the suit land as the cause of action arose on 28.08.1988, the date of dispossession and also on 27.06.1995, the date of getting the copy of the finally published khatian as per the plaint. It further appears from the record that the defendant-appellant herein decided the suit by filing the written statement. The case of the defendant as pleaded in his written statement is that the plaintiff has no cause of action and the suit is barred by the principles of waiver, acquiescence and estoppels and the suit is barred by law of limitation. However, it is stated that if the allegations/averments are not specifically admitted by the defendant in the written statement shall be deemed to have been denied. The defendant in no uncertain term stated in the written statement that the predecessors of the plaintiff never possessed the schedule "A" land and all those lands were "in constructive possession of the defendant", but without further elaboration as regards the nature of constructive possession. The defendant in no uncertain term stated in the written statement that the predecessors of the plaintiff never possessed the schedule "A" land and all those lands were "in constructive possession of the defendant", but without further elaboration as regards the nature of constructive possession. The plaintiff after her marriage left the place and did never come to take possession of the land. It has been denied that the father of the plaintiff never got the allotment of the suit land. Apart that, it is also stated that neither the plaintiff nor her father ever visited the suit land and the father of the plaintiff also never disturbed the possession of the defendant in the suit land. The father of the plaintiff handed over the possession of the suit land to the defendant and so the plaintiff cannot agitate the matter in any forum and she is e-stopped from raising any opposition as to the possession of the plaintiff. The defendant is in possession of the suit land from 1975 and the possession was within the knowledge and visibility of the plaintiff and her father and as such defendant's possession has become adverse to the interest of all who have any interest over the suit land. The possession being uninterrupted it has become unimpeachable. The plaintiff extinguished her right over the land. 2. The defendant also categorically denied that he dispossessed the plaintiff in the year 1988 from the suit land. He supported the entry as made in the khatian stated that in the course of the settlement operation the entries in the khatian was made on observing due process as prescribed and thereafter the khatian was finally published and the plaintiff was well aware of the said publication and did not make any objection as to the remarks made in the khatian, so the plaintiff cannot now state that those were unknown to her. The defendant further asserted that the plaintiff or her predecessor by virtue of the allotment had never been in the possession of the suit land and thus the suit is speculative one. The principal issues as framed by the Civil Judge, Jr. Division, South Tripura, Belonia, (hereinafter referred to as the trial Court) are: (1) Whether for institution of the suit there was any cause of action? The principal issues as framed by the Civil Judge, Jr. Division, South Tripura, Belonia, (hereinafter referred to as the trial Court) are: (1) Whether for institution of the suit there was any cause of action? (2) Whether the plaintiff had his right title or interest over the suit land or the plaintiff was ever dispossessed from the suit land as claimed. 3. The plaintiff, the respondent herein adduced two witnesses (the plaintiff herself and one Athawai Mog, respectively the PW 1 and the PW 2) and admitted in the evidence khatian No. 1187 of Mouja-West Charakbai (Exbt. 1), the revisional settlement khatian No. 897 of Mouja-West Charakbai (Exbt. 2) and the certified copy of the Map of Mouja-West Charakbai, Sheet No. 3 (Exbt. 3). The defendant examined himself (DW-1) and two other witnesses namely, Jagadish Chandra Shil and Ananta Kumar Debnath, the DW-2 and the DW-3 respectively, but the defendant did not adduce any documentary evidence in the trial Court, either to support his claim or for rebuttal. 4. On appreciation of the evidence both oral and documentary the trial Court held amongst others that: (1) From the forgoing discussions, I find and hold that the alleged story of dispossession of the plaintiff of the suit land by the defendant, is not proved and on the contrary the possession of the suit land found to be in favour of the defendant. (2) It appears from the evidence on record that the defendant has been continuously possessing the suit land till the institution of this suit without disturbance with the express/implied knowledge of the plaintiff or her father since 1978-79 AD. Such being the nature and position of evidence, I find and hold that the plaintiff has extinguished her title over the suit land. Thereafter holding that there was no cause of action, as such the suit for recovery on the basis of title was dismissed. However, it appears further that the trial Court also returned the finding as follows: The right, title and interest of the plaintiff in respect of the suit land has already been extinguished due to adverse possession of the suit land by the defendant since 1978- 79 AD (1385 B.S.) as recorded against the suit land (Plot No. 3098) in the R.S. khatian No. 897. 5. 5. Being aggrieved by the said judgment and decree dated 07.02.1998 the plaintiff, the respondent herein, preferred an appeal u/s 96 of the CPC in the Court of the Additional District Judge, South Tripura, Belonia being Title Appeal No. 01 of 1998. 6. In the first appellate Court, at the instance of the plaintiff one additional evidence being khatian No. 897 of Mouja-Charakbai was admitted as the Exbt. 4. The first appellate Court re-appreciated the entire evidence and on appreciation of the respective submissions made by the counsels for the parties reversed the judgment of the trial Court holding amongst others that: (1) The defendant, on the contrary, failed to produce any documentary evidence to challenge the title of the plaintiff over the suit land. The plea of the defendant is that the suit land is under his possession and that the plaintiff or her father never possessed the suit land. It is now well settled law that a person can maintain a suit in respect of his right, title and interest on the basis of the entries made in the settlement record. Since the defendant has no document of any, better title then that which were proved by the plaintiff, the trial Court ought to have held that the plaintiff has got the right and title over the suit land. (2) the suit will come under purview of the Article 65 of the Limitation Act. Let me first see what is meant by 'adverse possession.' The concept of adverse possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Occupation only implies bare use the land without any right to detain it. The concept contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. A possession to be adverse must be possessed by a person who does not acknowledge the others right, but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. 7. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. 7. On that basis as laid down, the first appellate Court held that: The entry in column No. 24 is either to accept or to reject fully and one cannot gain from it partially and reject it partially. The defendant claimed that he has uninterrupted and continuous possession over the suit land and he nowhere stated that he was possessing the suit land knowing and denying the title of the plaintiff. It is amply established that the plaintiff has got title, over the suit land. So in the absence of such a definite and strong plea and evidence about hostile possession the defendant's case of adverse possession cannot sustain. The defendant all through taken contradictory plea and is perplexed and confusing mind about his claim to the suit land. The first appellate further observed that: A sudden entry in the record of right in the peculiar circumstances of this suit would not solely justify and establish the claim of adverse possession of the defendant. Even the DW-2 being the adjacent neighbour did not state that there was hostile denial to the title of the plaintiff by the defendant (DW 1). The DW-3 also did not unfold anything relating to the hostile assertion against the title of the true owner. Thus while attending to the issue of limitation, the first appellate Court observed as under: Where a suit is brought for recovery of possession on the basis of title the onus is on the defendant to prove that he was possessing the suit land denying the title of the plaintiff for more than 12 years. On this point, I rely on the ratio on the decision of our parent High Court reported in Thokchom Ibopishak Singh Vs. Salam Chandra Singh and another, . There are also several other decisions of Hon'ble Apex Court and our parent High Court on the same point which I feel needless to state here. The plaintiff as I find brought the suit for recovery of possession within the statutory period of 12 years from the date of her alleged dispossession and so the suit of the plaintiff cannot be dismissed. The plaintiff as I find brought the suit for recovery of possession within the statutory period of 12 years from the date of her alleged dispossession and so the suit of the plaintiff cannot be dismissed. Again, on the basis of such observation, the suit was decreed by the first appellate Court by the impugned judgment. 8. Aggrieved thereby, the defendant presented this appeal u/s 100 of the CPC. At the time of admission the following substantial questions of law were framed: (1) Whether the Plaintiff, in absence of allotment order, was entitled to get a decree for declaration of title and recovery of possession on the basis of the khatian. (2) Whether the plaintiff's suit is barred by law of adverse possession. (3) Whether the suit is barred by the provisions of TLR & LR Act. 9. Mr. A. Bhowmik, learned counsel appearing for the appellant contended that the impugned judgment and decree cannot be sustained inasmuch as the declaration as made that the respondent is entitled to get the decree as prayed for or that the respondent, the plaintiff in the suit, has got right, title and interest over the suit land i.e. the land described in schedule B of the plaint and that the plaintiff is entitled to get khas possession of the suit land after evicting the defendant. He contended that the title has been declared based on the entry made in the Exbt. 2, the khatian of the suit land where it has been recorded that the land described in the said khatian was allotted to the father of the respondent and the respondent has stepped into shoes of his father. The defendant, the appellant herein, on the other hand did not produce any document to rebut the said entry. However, Mr. Bhowmik, learned counsel for the appellant emphatically submitted that the plaintiff respondent nor her father ever possessed the suit land and the story of dispossession from one imaginary day has been designed for purpose of institution of the suit. He farther contended that the defendant, the appellant herein claimed "adverse possession" over the suit land meaning thereby that appellant demonstrating the hostile possession against the true owner has been possessing the suit land. However, the appellant did not disclose who the true owner of the suit land is. He farther contended that the defendant, the appellant herein claimed "adverse possession" over the suit land meaning thereby that appellant demonstrating the hostile possession against the true owner has been possessing the suit land. However, the appellant did not disclose who the true owner of the suit land is. In para-9 of the written statement the defendant stated that the father of the plaintiff handed over the possession of the suit land to the defendant, as such the plaintiff cannot now agitate the matter in any forum she is estopped from raising objection as to the possession of the defendant. No further distich was made to remove the contradiction that emerged as in the written statement it has been contended with equal emphasis that the predecessor of the plaintiff or the plaintiff was never in possession of the suit land. Mr. A. Bhowmik, learned counsel appearing for the appellant with sufficient vehemence submitted that the observation by the first appellate Court that the defendant is saddled with onus to prove that he got the possession of the suit land from the father of the plaintiff on a particular day and time and in a particular way and manner is absolutely unwarranted in as much as the plaintiff, the respondent herein, is obliged to prove that they were in the possession and on a particular day and time they were dispossessed as claimed. 10. Mr. Bhowmik to buttress his contention that the record of entry in the record of right cannot create the title relied on a decision in Narasamma and Others Vs. State of Karnataka and Others, where the Apex Court held that: 12. ****** At the risk of repetition, in the present case both the Land Tribunal and the High Court held that the appellants were in possession of the land in dispute and the entries in the Record of Rights also stood in their names showing that the nature of cultivation was gutha (rent) and also the appellants were in possession of the same. As noted herein earlier, the respondent had failed to produce any document or material to show to the contrary. Therefore, the onus was on the respondent to show by producing material that the appellants had not acquired any status of occupancy right although they were found to be in continuous possession of the land in dispute. As noted herein earlier, the respondent had failed to produce any document or material to show to the contrary. Therefore, the onus was on the respondent to show by producing material that the appellants had not acquired any status of occupancy right although they were found to be in continuous possession of the land in dispute. Since the respondent had failed to produce any material or document to prove that the appellants had not acquired any status in respect of the land in dispute and had failed to show that the entries in the Record of Rights were wrong, we do not find any ground to reject the claim of the appellants for conferring status of occupancy right holder in respect of the land in dispute. In view of our discussions made hereinabove, we do not find any support to rely on the decision of this Court in the case of Jattu Ram Vs. Hakam Singh and others, that since the appellants had failed to prove their status of tenancy in respect of the land in dispute, they were not entitled to any relief. It is true that the entries in the revenue record cannot create any title in respect of the land in dispute, but it certainly reflects as to who was in possession of the land in dispute on the date the name of that person had been entered in the revenue record. That apart, in that decision of this Court, on which reliance was placed by the learned counsel for the respondent, it was admitted that the landlord did not receive any rent from the person in possession. Relying on this admission of the person from whom no rent was received, it was found that the plea of tenancy was a false one. As noted herein earlier, in the present case, not only the revenue records clearly show that the appellants were in continuous possession of the land in dispute, and the admission of the respondent that the appellants were tenants in an earlier recovery proceedings, and in the absence of any document having been produced by the respondent to show that the entries in the Record of Rights were wrong, it is not possible for us to rely on the aforesaid decision cited by the learned counsel for the respondent. So far as the decision of a learned Judge of the Bombay High Court in the case of Rita Premchand and Another Vs. State of Maharashtra and Others, is concerned, there is no dispute about the proposition enunciated in the said decision which says that the entries in the revenue records are not dispositive or conclusive on questions of title and that the revenue record cannot create any title and are relevant only for fiscal purposes. This proposition is not disputed, nor can we dispute it. In view of our discussions made hereinabove and accepting the principles enunciated in the aforesaid decision of the Bombay High Court we are of the view that the name of the appellants should be registered as an occupancy right holder in respect of the land in dispute. Accordingly, the application of the appellants shall stand allowed and consequent thereupon the orders of the Land Tribunal as well as the Division Bench and the learned Single Judge of the High Court shall stand set aside. 11. In this regard, he also relied on a decision in Jattu Ram Vs. Hakam Singh and others, and another, decision in Smt. Sawarni Vs. Smt. Inder Kaur and Others, to reiterate his contention that: 7. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. He also relied on a decision of this Court in Mahantam Kr. Pandit Vs. Pannalal Ghosh and Others, where it has been held that: 10. The land was allotted in favour of the appellant. This allotment was made under the provision of Section 14 of the Act, Ext. 1 is the copy of the allotment order. It has been observed by the learned Land Acquisition Judge in his judgment that the original allotment order was produced before the Court and the copy which was compared with the original was exhibited before the Court. Thus, Ext. A/1 which is the allotment order is not a copy of the order of the record of rights. It is document of title. Thus, Ext. A/1 which is the allotment order is not a copy of the order of the record of rights. It is document of title. Allotment of Government land is made under the provision of the Act in accordance with the Rules, namely, the Tripura Land Revenue and Land Record (Allotment of Land) Act, 1960. This allotment order, unless it is cancelled in accordance with the provision of law, confers title upon the person to whom the land has been allotted. While making submissions on the ambit of the mutation proceeding Mr. Bhowmik has referred a few decisions to hold that mutation proceeding is not a judicial proceeding and does not decide the title and its records do not create evidence thereof. In AIR 1926 100 (Privy Council) it has been held that: The perusal by their Lordships of the judgment of the Court of the Judicial', Commissioner of Oudh, at page 482 of the Record, leads their Lordships to think that its judgment is to a great degree based on the mischievous but persistent error that proceedings for the mutation of names are judicial proceedings, in which the title to and the proprietary rights in Immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of Immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid. He further raised a question that ad valorem court-fees has not been paid for recovery of the khas land as prayed for and the court-fees has been paid u/s 7(iv)(c) of the Court-fees Act. Therefore, suit is also liable to be dismissed for non-. payment of the court-fees. 12. Mr. Bhowmik, learned counsel appearing for the appellant continued to contend that the suit being based on title the burden on the plaintiff, the respondent herein, is heavier to prove his title over the land for getting recovery of possession and that burden has not been discharged by the respondent and as such the suit is bound to fail. In support of his contention he relied on a decision in Nagar Palika, Jind Vs. In support of his contention he relied on a decision in Nagar Palika, Jind Vs. Jagat Singh, Advocate, where it has been held that: ***** entries in Jamabandhies fall within the purview of the record of rights u/s 31 of the Punjab Land Revenue Act and as such are to be presumed to be true until the contrary is proved. Reference was also made to the case of Shri Raja Durga Singh of Solan Vs. Tholu, , where it was said that in an ejectment suit a finding by the District Judge on the question whether the defendants were the tenant of the plaintiff arrived at, on the consideration of all evidence, oral and documentary, adduced by the parties, was a finding of fact and could not have been set aside in Second Appeal by the High Court. Reliance was also placed on the case of Vishwa Vijay Bharati Vs. Fakhrul Hassan and Others, , in which this Court held that the finding of lower appellate Court on the question whether entries in revenue record were genuine or fraudulent was a question of fact and could not be set aside in Second Appeal. It has already been pointed out that the Court of Appeal without considering the question whether the plaintiff-respondent had proved his title to the property in dispute proceeded to examine whether the said respondent was in possession thereof. In a suit for ejectment based on title it was incumbent on part of the Court of Appeal first to record a finding on the claim of title to the suit land made on behalf of the respondent. The Court of Appeal never inquired or investigated that question which was at issue saying that the title of the plaintiff-respondent was admitted by the appellant. This was a serious error of record. The title and possession of the respondent had always been disputed by the appellant from the stage of the written statement. In this background, suit of the respondent could not have been decreed merely on basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971. 13. Mr. The title and possession of the respondent had always been disputed by the appellant from the stage of the written statement. In this background, suit of the respondent could not have been decreed merely on basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971. 13. Mr. Bhowmik finally submitted that beyond the period of limitation of 12 years the appellants are in possession of the suit land denying aggressively the title of the true owner and as such the entry in the khatian are not tenable as those are based on mischief and thus the declaration as made by the appellate Court is liable to be interfered with and set aside. He however skipped to shed light why the appellant has placed great reliance on the said khatian in proof of his possession. 14. Mr. A.K. Bhowmik, learned senior counsel appearing for the plaintiff-respondent referring to the para-11 of the written statement stated that the appellant has categorically admitted the fact of allotment as was made in favour of the father of the plaintiff, even though he denied the possession. For purpose of better appreciation the para-2 of the written statement is extracted hereunder: That the allegation made in para 6 of the plaint commencing page 2 and 3 of the plaint are not correct. This answering Defendant submits that, the father of the plaintiff had never been in possession of the suit land. In fact the allotment made in favour of the father of the plaintiff had never been acted upon and the father of the plaintiff too, did never try to take possession of the said land within his lifetime. After a lapse of 16 years from the year of the departing of the father of the plaintiff to his heavenly abode the plaintiff has filed a speculative suit, only to cause unnecessary expenditure to this defendant and for harassing this defendant. This defendant categorically denies all those allegations. Mr. After a lapse of 16 years from the year of the departing of the father of the plaintiff to his heavenly abode the plaintiff has filed a speculative suit, only to cause unnecessary expenditure to this defendant and for harassing this defendant. This defendant categorically denies all those allegations. Mr. Bhowmik had further shown that in the plaint, the respondent has categorically stated that on 27.06.1995 corresponding to 12.03.1402 B.S., received a copy of the finally published khatian No. 897 of her "A" schedule land and on receipt of it she found that against R.S. Plot No. 3098 in Column No. 24 there was an entry to the effect that possession of Sukhendu Bikash Saha, S/o. Aparna Saha from the year 1385 B.S. on transfer in violation of Section 14(1) of the Tripura Land Reforms and Land Revenue Act, 1960. That entry in the Column-24 was false as the defendant never possessed the said land before her dispossession. The plaintiff knew nothing about the record in the khatian against the plot No. 3098 and only on 27.06.1995 she learnt about it after receipt of a copy of the finally published khatian. She filed a case before the proper authority for correction of that record. She has right, title and interest over the suit land and hence requested the defendant to hand over the possession of the suit land without further breach of law. But since the appellant, the defendant in the suit did not hand over the suit land she has to file suit, for declaration of title and possession of the khas possession. He also reiterated the statement of the appellant made in para-9 of the written statement. 15. Mr. A.K. Bhowmik, learned senior counsel quite succinctly argued that the defendant did not come forward to adduce any such evidence to prove the claim of adverse possession rather a claim on the basis of long possession has been sought to be pushed forward. But no evidence has been adduced to show that the land was handed over by the father of the plaintiff. He contended that the entries in the khatian published finally have to be presumed is correct unless contrary is proved but here, in the peculiar situation of the suit the appellant cannot be allowed to gain benefit of the entry, since the defendant's plea is not corollary to the spirit of the entry. 16. Mr. He contended that the entries in the khatian published finally have to be presumed is correct unless contrary is proved but here, in the peculiar situation of the suit the appellant cannot be allowed to gain benefit of the entry, since the defendant's plea is not corollary to the spirit of the entry. 16. Mr. Bhowmik further submitted that when the khas khatian in the name of the plaintiff's father was opened whether the defendant's name was there or not has not been proved by the appellant. The defendant in the examination-in-chief categorically stated that the predecessor of the plaintiff got allotment of the suit land in his favour but soon thereafter in the cross-examination he back out from his statement and stated that he did not get the allotment order. He simply stated that he has been possessing the suit land for 32/33 years. The D.W. 2 has did not stale that the defendant was possessing the suit land denying the title of the suit land and no other witness was adduced by the appellant as the defendant to rebut the claim of the title to demonstrating that he was possessing the suit land denying the title of the true owner or continuously with such open denial and assertion beyond the period of limitation as stated. The plaintiff has stated how she was dispossessed from the land 7 to 8 years ago on the morning. The PW 2 corroborated her. Since it has emerged that the PW 2 has the hostile interest against the defendant so the first appellate Court did not entirely believe the PW 2 to have corroboration of the version of the plaintiff as regards the dispossession from the suit land. The appellate Court observed that: I have already stated earlier that where a suit is brought for recovery of possession on the basis of title the onus is on the defendant to prove that he was possessing the suit land denying the title of the plaintiff for more than 12 years. 17. Mr. Bhowmik, learned senior counsel for the respondent finally contended that the plaintiff has successfully proved her case and accordingly the impugned judgment and decree cannot be faulted with. 18. 17. Mr. Bhowmik, learned senior counsel for the respondent finally contended that the plaintiff has successfully proved her case and accordingly the impugned judgment and decree cannot be faulted with. 18. While appreciating the submissions as advanced by the learned, counsel for the parties, this Court in the fitness of things has made a survey of the evidence as would be relevant for determination of the substantial questions of law as formulated. It appears that the trial Court dismissed the suit holding that: ***** the alleged story of dispossession of the plaintiff from the suit land by the defendant is not proved and on the contrary the possession of the suit land is found to be in favour of the defendant and that the plaintiff has extinguished her title over the suit land and thus it had been held that the plaintiff was not entitled to have decree for recovery of the possession of the suit land on the basis of the title. 19. Mr. Bhowmik, learned counsel appearing for the appellant, correctly contended that mutation proceeding is not a judicial proceeding and thus a Mutation Officer has no right to declare title. For that reason any entry made in the settlement records or in the record of right cannot be considered as proof of title. There is no dispute that the respondent could not file the order of allotment and only relied on the Exbt. 2, the record of right, where her name has been recorded as the legal heir of her father, the allottee, but the question is whether the plaintiff, the respondent herein, could successfully discharge her onus to prove the title or not. The defendant in the written statement has categorically stated that even though, the allotment was made in the favour of the father of the plaintiff, the respondent herein, but in his life time he did not possess the suit land. Apart that in the written statement, the appellant further stated that the father of the plaintiff did hand over the suit land to him and thereafter he has been continuously possessing the suit land. Since there is no challenge against the allotment whether the plaintiff was under any obligation to prove that fact independently despite such admission as made by the defendant. The admission is direct by description and also by the implied conduct and not on agreement. Since there is no challenge against the allotment whether the plaintiff was under any obligation to prove that fact independently despite such admission as made by the defendant. The admission is direct by description and also by the implied conduct and not on agreement. There is no allegation of exercising fraud to the entries in the record of right. Therefore, even though in the ordinary circumstances on the face of the challenge the title could not have been declared on the basis of the entries made in the record of right but in this case the express admission made by the appellant, the first appellate Court did not commit any illegality by declaring the title on the basis of such admission read with the entries in the record of right (Exbt. 2 series). Whether the continuous possession in a piece of land would confer on the possessor on expiry of 12 years, the right to claim the title adversely? It is apparent that the appellant did not file any parallel suit nor the counter claim for passing a decree on adverse possession. The claim of adverse possession has merely taken as a plea to frustrate the claim of the plaintiff. To prove the adverse possession the hostile demonstration against the true owner is one of the essential and inalienable elements and the person who claims the adverse possession against the true owner is under obligation to plead and prove from which day he has been demonstrating such hostility and how. The point of limitation start from that day and after expiry of 12 years there form the title would mature with the said person. In this case there is no evidence of the hostile assertion. More over the evidence of the P.W. 1 cannot be disbelieved as the said statement has got corroboration from the entries made in the settlement entries, Exbt. 2 series and the plaintiff has given her explanation for delay in approaching the Court but there is no dispute that the suit has been filed within the period of limitation from the date of publication of the said khatian. She has categorically stated that the entries as made in the Column 24 had been inserted wrongly and she would take appropriate action for correction of the said entry. The appellant has clearly taken two pleas at the same time. She has categorically stated that the entries as made in the Column 24 had been inserted wrongly and she would take appropriate action for correction of the said entry. The appellant has clearly taken two pleas at the same time. He stated that the lather of the plaintiff handed over the suit land to him and on the other hand he stated that he has been adversely possessing showing hostility to the true owner of the said land. Thus the claim of the adverse possession can hardly be given any cognizance as these contentions are mutually exclusive. 20. Mr. Bhowmik, learned counsel for the appellant has correctly stated that for purpose of recovery of the possession of the land, the plaintiff is supposed to pay the ad valorem court-fees in terms of Section 7(V) of the Court Fees Act in as much as no recovery can be made by way of declaration. On considering the relief as prayed it becomes clear that there is a specific prayer for recovery of khas possession. Since this aspect of the matter was not properly dealt with by the trial Courts in the relevant time and the Court did not discharge its duty asking to pay the required court-fees, this cannot be used against the plaintiff at this stage. However the decree shall only be prepared on deposit of the requisite court-fees within a period of 7(seven) days from today. 21. Mr. Bhowmik, learned counsel appearing for the appellant while relied on those decisions as regard to entries in the khatian, did not collate the aspect of admission as made in the written statement. The decisions so relied by him have been rendered in the different sets of fact and circumstance. But this Court places a note of appreciation for Mr. A. Bhowmik, learned counsel for the appellant for his commendable dexterity in presenting the appeal. As corollary to these findings, this appeal must fail. Accordingly, the same is dismissed. There shall be no order as to costs. Send back the LCRs forthwith.