Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 632 (CAL)

Sukesh Chandra Jatua v. Prafulla Kumar Jatua

2013-09-03

ASIM KUMAR RAY

body2013
JUDGMENT Asim Kumar Ray, J. Being aggrieved by and dissatisfied with the judgment and decree dated 30th June, 1992 passed in Title Appeal No. 303 of 1990 by learned Additional District Judge, 8th Court, Alipore reversing the judgment and decree dated 30th April, 1990 passed in Title Suit No. 400 of 1987 by learned Munsif , 3rd Court, Diamond Harbour this appeal has been preferred. 2. Factual matrix of the plaintiff’s case is that one Jogesh Chandra Mukhopadhyay was the original owner of the suit land measuring 1.40 acres and half cent appertaining to Khatian No. 52, Mouza-Madhavpur under P.S. Mandirbazar within the district 24 Parganas. He filed a rent suit being Case No. 871 of 1946 against his subjects before the Court of 3rd Munsif , Diamond Harbour and in the execution of the decree being Rent Execution No. 331 of 1947 the suit land were put to auction sale on 11-7-1947. The Original plaintiff Sukesh Chandra Jatua purchased the said land and got possession of the same through Court on 8-9-1948. In the rent execution case Padmamani Dashi and Upendra Nath Jatua, father of Sukesh were the judgment-debtors. Padmamani filed a suit to avoid the auction and the plaintiff also filed another suit against her. Both the suits were settled following a solenama in which the auction purchase of the plaintiff and his title and possession were confirmed. Original plaintiff, Sukesh Chandra Jatua subsequently constructed three rooms in Plot No. 255 and started a tile factory. Thereafter at the request of defendant No. 4 Prafulla Kumar Jatua the possession of the suit land and the said structure was handed over to him in Agrahan 1355 B.S. to run the tile factory by way of permissive settlement. But the defendant No. 4 closed the said tile factory in Chaitra 1356 B.S. The plaintiff took the khas possession of the suit land along with the structure and continued the factory for preparation of tile. He has never settled the suit land to defendant No. 4 on a fixed rent and never realised any rent from him. Defendant No. 4 dispossessed him from half decimal of land out of Plot No. 255 on second Pous, 1383 B.S. by constructing a structure made of ‘chita bera’. Initially the plaintiff brought the suit against defendant nos. He has never settled the suit land to defendant No. 4 on a fixed rent and never realised any rent from him. Defendant No. 4 dispossessed him from half decimal of land out of Plot No. 255 on second Pous, 1383 B.S. by constructing a structure made of ‘chita bera’. Initially the plaintiff brought the suit against defendant nos. 1,2 and 3 alleging that they forcibly caught fishes from his tank and taken away other valuable fruits from the fruit bearing trees standing on the suit land causing a loss of Rs.990/- . But subsequently he gave up his claim in that regard and after impleading defendant No. 4 he took out a case for recovery of possession in respect of two decimals of land and for confirmation of his possession in respect of the rest suit lands as well as declaration of title in respect of entire suit land comprising an area of 1.41 acres. 3. Original defendant No. 1 by filing written statement supported the possession of defendant No. 4 in the suit property and has stated that he is an unnecessary party in the suit. Defendant No. 4 contested the suit by filing written statement wherein he has stated that although the plaintiff acquired title and possession in the suit property by virtue of auction purchase but he gave oral settlement of the entire suit land to him at an annual jama of Rs.8/- and annas 5 sometime in Agrahan 1355 B.S. Thereafter defendant No. 4 started a tile factory on the suit property and continued the same for 6/7 years. He closed his factory due to loss and converted the rooms used in tile factory for habitation. He started living there with his family and possessing the rest land by cultivation of vegetables and enjoying fruits of fruit bearing trees. He has disputed the story of dispossession from half decimal of the land during the pendency of the suit as claimed by the plaintiff. The plaintiff has admitted the fact of settlement of the entire suit land to the defendant No. 4 by him by filing written statement in T.S. No. 456 of 1949 in the Court of Munsif, 1st Court, Diamond Harbour. 4. The plaintiff has admitted the fact of settlement of the entire suit land to the defendant No. 4 by him by filing written statement in T.S. No. 456 of 1949 in the Court of Munsif, 1st Court, Diamond Harbour. 4. The right, title and interest of the plaintiff over the suit land was declared and the possession in respect of some portion was confirmed and in respect of some portion the defendant was directed to render khas possession to the plaintiff within a time frame by the learned Munsif, 3rd Court and in first appeal being Title Appeal No. 303 of 1999 the judgment and decree passed by Munsif, 3rd Court , Diamond Harbour in Title Suit No. 400 of 1997 was set aside , so this second appeal. 5. Before taking up the hearing of the appeal this Court has formulated substantial questions of law taking the spirit of Section 100 of Civil Procedure Code (amendment act) 1976. The substantial questions of law are as follows :- i ) When the statute requires a deed, whether the learned Judge of the 1st Appellate Court committed substantial error of law by holding that the contesting defendant became the owner of the suit property by way of oral settlement; ii) Whether the learned Judge of the 1st Appellate Court committed substantial error of law by holding that the contested defendant is the owner of the suit property by relying upon the alleged admission of the plaintiff in the pleadings as well as depositions in the earlier proceeding without appreciating that title cannot pass by mere admission; iii) Whether the 1st Appellate Court committed substantial error of law by not holding that the presumption of correctness of an entry in the revenue record cannot be rebutted by a statement in the written statement but such rebuttal should be made by leading evidence. 6. Mr. Hironmoy Bhattacharjee, learned counsel appearing for the appellant has contented that title in respect of a property cannot pass by admission. On the alternative by virtue of an admission title to a property cannot be extinguished. The requirements of the statute is the execution of a deed in respect of the property and on the basis of fulfillment of such requirements title to the property can pass. On the alternative by virtue of an admission title to a property cannot be extinguished. The requirements of the statute is the execution of a deed in respect of the property and on the basis of fulfillment of such requirements title to the property can pass. But in the case in hand the learned Judge of the first Appellate Court has arrived at a finding that the contesting defendant became the owner of the suit property by oral settlement. By oral settlement a person cannot be the owner of a suit property and the admission cannot create any title to a property. 7. He has contended further that the deposition in any earlier proceeding as well as admission in the pleading cannot create the title of the contesting defendant and on such admission the defendant cannot be the owner of the suit property. He has relied on a decision reported in AIR 1966 SC 605 . 8. Mr. Bhattacharjee has contended further that the suit property has been recorded in the name of the appellant/plaintiff in the R.S. ROR. Entry in the revenue record is a rebuttable presumption and the presumption of correctness of an entry cannot be rebutted by making statement in the written statement. A specific evidence is the requirement of law to rebut a presumption of the recording of R.S. ROR. On this point he has relied on a decision reported in AIR 2002 SC 504 . 9. Mr. Bhattacharjee has contended that the settlement of the property in dispute in favour of the defendant alleged to have been made in the year 1355 B.S. and in order to be a valid settlement a registered instrument was required to be in existence as per demand of Section 26(c) of Bengal Tenancy Act which was prevailing at that point of time. On this point he has relied on a decision reported in 1998 (1) CLJ 613. He has contended that a question of title when required to be gone into then the same is certainly a question of law and necessarily such a question of law can be examined even in a second appeal. He has relied on a decision reported in (1999) 9 SCC 237 . Possession of the respondent /defendant was at best a permissive possession and such possession cannot bring title. He has relied on a decision reported in (1999) 9 SCC 237 . Possession of the respondent /defendant was at best a permissive possession and such possession cannot bring title. There was no case of the respondent/defendant that he was in adverse possession in respect of the property and by such possession he has acquired the title over the suit property. 10. Mr. Probal Mukhherjee, learned counsel appearing for the respondents/defendants has contended that the plaintiff in his evidence has admitted that he inducted the defendant in suit property. The evidence of P.W.2 and P.W.3 has supported the case of the defendant that the defendant is enjoying his possession over the suit property by producing vegetable etc. Therefore the possession of the defendant in respect of the suit property is proved by evidence and recording of the ROR has been rebutted accordingly. He has contended further that the finding recorded by the first appellate Court is based on appreciation of evidence and this Hon’ble High Court in the second appeal must not interfere in it. He has relied on a decision reported in (2004) 11 SCC 394 . He has also contended that the admission of the appellant in a previous suit is admissible in evidence. He has relied on a decision reported in (2009) 11 SCC 545 . 11. The learned Trial Court discarded the case of the contesting defendant regarding oral settlement as there was no documentary evidence regarding exchange of rent. The possession of the defendant by virtue of oral settlement has not been given any credence. The first appellate Court has held that admission is substantive evidence even though the parties are not confronted with the statement. Express admission of a party in a former suit in respect of the selfsame property either in a written statement or in a deposition are strong evidence against him. The first appellate Court has held that admission is substantive evidence even though the parties are not confronted with the statement. Express admission of a party in a former suit in respect of the selfsame property either in a written statement or in a deposition are strong evidence against him. The first Appellate Court has highlighted the case of the contesting defendant that the appellant/plaintiff as defendant No. 2 in Title Suit No. 456 of 1994 in the Court of 1st Munsif at Diamond Harbour has admitted (vide page 9 of the written statement) that defendant No. 5 of the said suit, who is the respondent of this appeal Prafulla Kumar Jatua took settlement of the land in Agrahan 1355 B.S. from the plaintiff and in some portion of the same he started a factory for preparation of tile at his own cost. Then again the plaintiff in course of his deposition in Misc. Case No. 399 of 1949 before the Court of 3rd Munsif at Diamond Harbour admitted that he let out one portion of land to Prafulla Kumar Jatua and he has made a factory of tile there. He further admitted that Prafulla started possessing the said portion of land two months after his purchase. 12. The point in issue before us that when the statute requires a deed, the question of ownership of contesting defendant in respect of the suit property by oral settlement and even by admission is sufficient or otherwise to create a title. 13. In the case of Ambika Prasad Thakur and others etc. vs. Ram Ekbal Rai (dead) by his legal representatives and others etc. reported in AIR 1966 SC 605 the fact of admission to create title was dealt with and it is observed that “the Maharaja was interested in the success of the suit, and it was necessary for him in his own interest to make this admission. The admission was made under somewhat suspicious circumstances at the end of the trial of the case when the arguments had begun. Though this petition was filed, the written statement of the Maharaja was never formally amended. In the circumstances, this admission has weak evidentiary value. In this suit, the plaintiffs do not claim tenancy right either by express grant or by adverse possession.” 14. Though this petition was filed, the written statement of the Maharaja was never formally amended. In the circumstances, this admission has weak evidentiary value. In this suit, the plaintiffs do not claim tenancy right either by express grant or by adverse possession.” 14. In the case in hand the respondent/defendant has claimed that by virtue of admission title of the plaintiff to the property has been extinguished. It is not the case of the respondent/defendant that he has acquired title to the suit property by adverse possession. But it is his case that he has acquired the title by the effect of admission. The claim of the respondent/defendant has no sanction in the eye of law as to pass a title the role of admission is of no value and it is the demand of law that to pass a title in respect of the suit property the existence of document is unquestionable. 15. This Court is to make specific note that learned counsel of the respondent has not opened his lips regarding accruing of title to the suit property by respondent through admission. 16. It is an admitted fact that the suit property belonged to Upendra Nath Jatua, father of the plaintiff who purchased the same on an auction sale dated 29.8.1947. Certified copy of the certificate of sale (Ext. 4) speaks about the auction sale of the suit property and the parties of the same. The factum of purchase of the suit property by the plaintiff was confirmed (Ext. 6 certified copy of Misc. Appeal No. 268 of 1950). The recording of the plaintiff’s name in the R.S. ROR must be presumed to be correct but that presumption of correctness of the entry can be rebutted. To rebut the presumption of correctness of an entry in the record of right by leading evidence is essential. It cannot be rebutted by statement in the written statement. There is no evidence on record to show that the entry in the record of right is incorrect. 17. In the decision reported in Karewwa and others vs. Hussensab Khansaheb Wajantri and others reported in AIR 2002 SC 504 , the Hon’ble Supreme Court has observed “that the presumption of correctness of an entry in the revenue record cannot be rebutted by a statement in the written statement. 17. In the decision reported in Karewwa and others vs. Hussensab Khansaheb Wajantri and others reported in AIR 2002 SC 504 , the Hon’ble Supreme Court has observed “that the presumption of correctness of an entry in the revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect”. 18. Oral settlement in respect of the suit property was effected in 1355 B.S. and the possession was given to the defendant accordingly. The said settlement should have been effected through registered instrument as per demand of Section 26(C) of the Bengal Tenancy Act which was prevailing at that point of time as the claim of the defendant, if accepted, was nothing but a gift which comes within the purview of Section 122 and Section 123 of the Transfer of Property Act. 19. Taking the totality of the matter and the substantial questions of law formulated by the Court it is abundantly clear that mere admission and oral settlement cannot pass title to a property. The entry in the R.S.ROR has not been rebutted by leading evidence. On the alternative this is not a case of adverse possession of the respondent/defendant and as such possession, if any, of the respondent/defendant is at best a possession by permission which in way create a title to the property in dispute. 20. The judgment and decree dated 30th June, 1992 passed in Title Appeal No. 303 of 1990 by learned Additional District Judge, 8th Court Alipore is hereby set aside. 21. In the result the appeal is allowed. 22. Send down the lower Court record. 23. Urgent Photostat certified copy of this judgment be supplied to learned counsel of the parties, if applied for.