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2016 DIGILAW 426 (CAL)

Rabin Barat v. State of West Bengal

2016-05-17

MIR DARA SHEKO, SOUMITRA PAL

body2016
JUDGMENT : Mir Dara Sheko, J. 1. Being aggrieved by the judgment dated 15.12.2005 delivered by Learned Civil Judge (Senior Division) Bankura, and decree being sealed and signed on 23.12.2005 in Title Suit No. 14 of 1996, the appellant-plaintiff (hereinafter referred to as the 'appellant') has filed this first appeal against the State of West Bengal and Circle Inspector, Khatra and Pagal Barat, the respondent-defendant Nos. 1, 2 & 3 respectively. Case of the appellant, in brief, is that the suit plot No. 32 in Mouza Ledisole, having a total area of 1.85 acre, belonged to Fakir Karmakar and Satish Karmakar in equal halves. 2. Out of the said 1.85 acre said Fakir Karmakar and Satish Karmakar settled 48 decimals in favour of one Sripati Haldar, retaining 1.37 acre in their possession. 3. Satish Karmakar having died intestate as unmarried, Fakir Karmakar as the sole heir, became absolute owner of the said 1.37 acre of suit plot No. 32, as described in schedule 'Ka' of the plaint. The name of Fakir Karmakar was duly recorded in the R.S. R.O.R. 4. Further case of the appellant is that said Fakir Karmakar on 18.06.1962 transferred his entire 1.37 acre executing one sale deed covering Eastern 69 decimals in favour of Pagal Barat, the respondent No. 3 and Western 68 decimals by executing another deed in favour of Kalachand Barat, father of the appellant. 5. It is averred that said Kalachad Barat died before 1986 leaving five sons, including the appellant and one daughter. The brothers and sister of the appellant inherited the said, western 68 decimals left by Kalachand Barat. On 16.12.1985 the brothers and sister gifted their shares in said western 68 decimals to the appellant by which the appellant became the owner of the said western 68 decimals of suit plot No. 32 in Mouza Ledisole which is the suit property, as described in Schedule 'Kha', the same being part of schedule 'Ka' as described in the plaint. 6. The appellant contended that though his father permitted the respondent No. 2, the Circle Inspector Khatra to construct one office room for the Circle Inspector of Police and to possess the same in lieu of rent or licence fees at the rate of Rs. 250/- per month but after demise of his father the appellant could not trace out the rent receipts. 7. 250/- per month but after demise of his father the appellant could not trace out the rent receipts. 7. The appellant further contended that the appellant previously on 31.7.1989 filed a Title Suit No. 107 of 1989 in the Court of Munsif, Khatra against these respondent Nos. 1 and 2 apart from one Manas Prasun Haldar and Handu Karmakar, son of late Fakir Karmakar and by making Pagal Barat as proforma defendant No. 5, for declaration of title and permanent injunction in respect of the suit property i.e. the western 68 decimals of plot No. 32 wherein the respondent No. 1, the State though took the defence of acquisition of the said land for the purpose of construction to set up C.I. Office and quarters upon plot No. 32 but the state could not prove the same. Although the title of the appellant in that suit was established, the suit was dismissed on 20.12.1991 holding that it was hit by section 34 of the Specific Relief Act since the appellant had no possession and the decree for declaration without any prayer for recovery of possession could not be allowed. 8. The appellant in paragraph 7 of the plaint averred that while Fakir Karmakar, since deceased, was in possession of the eastern 69 decimals, he had permitted the then Circle Inspector to raise construction on assurance that the said portion would be acquired by the Government and eventually the quarters of the Inspector were also allowed to be constructed by the appellant's father on the western portion in lieu of licence fees of Rs. 250/- per month. 9. The appellant claimed that though the suit land was never acquisitioned by the Government at any point of time, although the State or the Circle Inspector of Police Department had no right, title, interest over the suit property but they having denied the title of the appellant and having claimed right by dint of acquisition, the appellant filed this suit on 21.11.1994 as indigent person which subsequently was registered as Title Suit No. 14 of 1996 on 29.01.1996 on the following prayers: "(a) plaintiff's right title interest be declared to the western 68 decimals mentioned in schedule Kha which is part of schedule Ka." "(b) a decree of khas possession in the suit property directing the respondent Nos. 1 and 2 to remove all standing structures." "(c) alternatively in the event of proof of acquisition in respect of Ka schedule decree may be passed entitling the appellant Rs. 2,96,300/- and other incidental benefits;" "(d) alternatively, if the Ka schedule property be held as ejmal between the appellant and respondent No. 3 then a preliminary decree may be passed declaring half share of the appellant and allotting the Kha schedule property in favour of the appellant with the help of Survey Passed Commissioner; and" "(e) decree may be passed entitling the appellant to take khas possession of the Kha schedule by removing the standing structures there from if those structures are not removed by the respondent Nos. 1 and 2." 10. Respondent No. 3 Pagal Barat, pro-forma defendant No. 5 in the earlier suit did not contest the suit or the appeal though filed written statement was filed. 11. The respondent No. 1 as well as 2 submitted written statement denying inter alia the case of the appellant, and denying entitlement of any right, title and interest of the appellant and had stated that the present suit is not maintainable since it is barred by the principles of estoppel, waiver, acquiescence, res judicata and law of limitation. 12. The respondent Nos. 1 and 2 specifically contended that for setting up the office and quarters of the Circle Inspector of Police Department at Khatra the 1.32 acre of plot No. 32, in Mouza Ledisole, was acquired in the year 1924-25 by the Government by maintaining all formalities -by making payment of award to the original owner of the suit plot. Thereafter constructions were raised over the acquired portion and the said fact also was disclosed in the previous Title Suit No. 107 of 1989. 13. Thereafter constructions were raised over the acquired portion and the said fact also was disclosed in the previous Title Suit No. 107 of 1989. 13. It is further contended that since after acquisition and after raising of construction over the acquired portion of the suit plot the office of Circle Inspector of Police Department having remained functional along with the of residential quarters of the Police Officers since more than 72 years have passed, the instant suit is liable dismissed, and as the deeds as referred in the plaint did not confer any right, title, interest upon either of the transferees, in view of acquisition of 1.32 acre of the suit plot belonging to Fakir Karmakar, he had no transferable right in respect of the portion of the suit land, so acquired. 14. Upon such pleadings learned Trial Court framed the following issues:- "(i) Is the suit maintainable in its present form and prayer? (ii) Is there any cause of action for the suit? (iii) Is the suit barred by limitation? (iv) Is the suit barred by the principles of estoppel, waiver and acquiescence? (v) Is the suit barred U/s. 34 of the Specific Relief Act? (vi) Is the suit bad for defect of parties? (vii) Is the plaintiff entitled to get the decree as prayed for? (viii) To what other relief if any, is the plaintiff entitled? (ix) In the suit bad for non-joinder of necessary parties? (x) Has the plaintiff right, title and interest in the suit land? (xi) Is the suit triable within the jurisdiction of the present court? (xii) Have the defendants acquired title in the suit-property by adverse possession? (xiii) Was the suit land acquired by the Govt. of West Bengal as per Land Acquisition Act, 1894? (xiv) Is the suit barred by the principles of res judicata?" 15. We find that to decide the case learned Trial Court took all the fourteen issues together for discussion "for the sake of brevity and for convenience" observing that those are "interlinked in character". 16. of West Bengal as per Land Acquisition Act, 1894? (xiv) Is the suit barred by the principles of res judicata?" 15. We find that to decide the case learned Trial Court took all the fourteen issues together for discussion "for the sake of brevity and for convenience" observing that those are "interlinked in character". 16. Order 14 Rule 2 of the Code of Civil Procedure has mandated the Court to "pronounce judgment on all issues." So it is desirable that the trial Court to avoid any chance of departure from such provision should take up discussion and decision issue wise, as far as it is practicable, which of course does not debar the trial Court to take up a set of issues together for the sake of brevity and convenience, provided those are really interlinked either in terms of fact or in terms of law, meaning thereby, discussion and decision of one such issue is to be interlinked with the rest of such set of issues so taken together for the sake of convenience and brevity. 17. Be that as it may, we do incline to determine the suit finally under Order 41 Rule 24 of the Code of Civil Procedure since we find the evidence as adduced by the parties in the suit are sufficient to enable us to pronounce the judgment by way of resettling the issues of fact and law by reassessing the evidence in this first appeal, wherever required. 18. Since the appellant in respect of the self-same suit plot had filed a suit being Title Suit No. 107 of 1989, after getting return of the plaint of his previous Title Suit No. 104 of 1987 (which was for partition) and said Title Suit No. 107 of 1989 was dismissed and the Title Appeal No. 18 of 1992 preferred there from by the appellant was also dismissed affirming the judgment of Title Suit No. 107 of 1989. let us take up first the issue Nos. (iii), (v), (xi) along with (xiii) and (xiv) for consideration. 19. Mr. Anirudhha Chatterjee learned Advocate for the appellant submitted that in the earlier Title Suit No. 107 of 1989, which was filed on 31.7.1989, title of the appellant in the suit property was established and the defence of the respondent that the suit property was acquired under Land Acquisition Act was not accepted by the Court for want of proof. Mr. Anirudhha Chatterjee learned Advocate for the appellant submitted that in the earlier Title Suit No. 107 of 1989, which was filed on 31.7.1989, title of the appellant in the suit property was established and the defence of the respondent that the suit property was acquired under Land Acquisition Act was not accepted by the Court for want of proof. Since the said suit was dismissed for having no prayer of recovery of khas possession and the present suit having been filed on 21.11.1994 on different fact and cause of action and as parties within twelve years after dismissal of the earlier suit i.e. within the stipulated period laid down under Article 65 of the Limitation Act, 1963 had filed the present suit, the present suit is not barred by limitation and this fresh suit is thereby not barred by the principles of res judicata. Mr. Chatterjee further submitted that the office of the Circle Inspector Khatra was constructed upon the suit property previously with the permission of the original owner and then of the appellant's father. The suit property was allowed to be possessed by the police department in lieu of licence fees at the rate of Rs. 250/- per month. Therefore filing of the instant suit with prayer of eviction of licencee with recovery of possession itself shall be deemed as the notice under section 106 of the Transfer of Property Act, 1882 by revocation of the licence, and no separate notice to quit revoking the licence is required. 20. Mr. Chatterjee further submitted that since the learned Trial Court had held that the fact of acquisition of the suit property by the state could not be proved by showing payment of compensation award, and since the respondent Nos. 1 or 2 did not file any cross-objection or cross appeal, the respondent is not entitled to challenge the finding against him in the judgment appealed against. Submission was although in the K.B. settlement the name of the police department was wrongly recorded, the right, title, interest of the appellant cannot be held to have been extinguished by such erroneous recording and, therefore, the appeal be allowed by setting aside the judgment as the title of the appellant has already been established in the previous suit relying on the following judgments:- "(1) Gaya Prashad Dikshit v. Dr. Nirmal Chander & Anr. reported in AIR 1984 Supreme Court Cases 930. Nirmal Chander & Anr. reported in AIR 1984 Supreme Court Cases 930. (2) State of Haryana v. Mukesh Kumar & Ors. reported in (2011)10 Supreme Court Cases 404. (3) Mukhtvarbegum v. The Commissioner, Nagpur Division. Nagpur& Ors.. reported in AIR 1976 Cal Page 55. (4) Shri Inacio Martins, Deceased through LRs., v. Narayan Hari Naik & Ors., reported in AIR 1993 Supreme Court 1756. (5) Hardevinder Singh v. Paramjit Singh and Others reported in (2013)9 Supreme Court Cases 261. (6) Banarsi and Others v. Ram Phal reported in (2003)9 Supreme Court Cases 606. (7) Nanda Lal Agarwalla, v. Rameswar Lal Sharma reported in AIR 1979 Calcutta 30." 21. Mr. Hiranmay Bhattacharya, learned advocate for the respondent No. 1 & 2 argued that in the year 1924-25 the suit plot measuring 1.32 acre was acquired by the Government by mentioning boundaries. Although document could not be produced in the previous suit No. 107 of 1989 in support of said defence, since admittedly the office of the Circle Inspector and the quarters have been lying over the suit plot covering also the suit property after acquisition the evidence produced in the instant suit demonstrate the official acts of the Government which would have presumptive value after acquisition. It was submitted that of documents to that effect are produced the Civil Court could have no jurisdiction to question the validity of such acquisition. Mr. Bhattacharya submitted that since the case of licence contended by the appellant could not be proved in the previous suit and since the decree of the suit has gone entirely against the appellant, the subsequent suit on the similar facts and causes of action is barred by res judicata. Since the decree of the suit entirely stands against the appellant, the state respondent, in view of the law laid down in (2003) 9 Supreme Court Cases 606, is entitled to argue also on the findings gone against the State without filing of cross-objection in view of the provisions under Order 41 and Rule 22 read with Rule 33 of the Code of Civil Procedure. Mr. Bhattacharya apart from relying on the cases cited by Mr. Chatterjee also cited the judgment in Hardevinder Singh v. Paramjit Singh and Others reported in (2013)9 Supreme Court Cases 261. 22. Mr. Bhattacharya apart from relying on the cases cited by Mr. Chatterjee also cited the judgment in Hardevinder Singh v. Paramjit Singh and Others reported in (2013)9 Supreme Court Cases 261. 22. It may be noted that prior to the Title Suit No. 107 of 1989, the appellant had filed another suit being Title Suit No. 104 of 1987 (for partition) where the state also was a party. From Ext. 'D' in judgment of the Title Suit No. 107/1989 and Ext. 'F' of the judgment and decree in Title appeal No. 18 of 1992 filed against the judgment of dismissal of the title Suit No. 107 of 1989, we find that both the Courts observed that the said title suit No. 104 of 1987 relating to the suit plot was allowed to be withdrawn by returning its plaint for presentation before proper Court and said suit was not disposed of on merit. But there is no evidence as to what had happened regarding that plaint, so returned. However, since the parties specially the respondent did not highlight on the point of such return of plaint, or, whether it was presented ever before the appropriate Court, we do not delve into the question about the plaint so returned, since evidence and observation on that score are not adequate. 23. We find in the present suit the appellant examined four witnesses including himself. On 25.7.2000 the appellant deposed as P.W. 1. He said he was about 29 years. P. W. 2 Dhiren Barat was a witness to the deed of gift executed on 16.12.1985 in favour of the appellant by his brothers and sister. PW. 3 is a law clerk who proved the notice under section 80 of the Code of Civil Procedure. P.W. 4 is the learned Advocate who held local inspection showing the existing features of the suit land. So evidence of P.Ws. 2, 3 and 4 are all formal in nature. Therefore, the merit of the case of the appellant remained dependent virtually upon his own evidence regarding title which is supposed to be followed by possession. 24. On the side of the respondent State the then Land Acquisition Officer deposed as D.W. 1. So evidence of P.Ws. 2, 3 and 4 are all formal in nature. Therefore, the merit of the case of the appellant remained dependent virtually upon his own evidence regarding title which is supposed to be followed by possession. 24. On the side of the respondent State the then Land Acquisition Officer deposed as D.W. 1. During his evidence certified copy of Calcutta Gazette Notification dated 27.11.1924, C.S. Khatian 49 of Mouza Ledisole, certified copy of plaint of previous Title Suit No. 107 of 1989, its copy of judgment and decree, judgment of Title Appeal 18 of 1992, L.R. Khatian of the suit property, Calcutta Gazette Notification dated 18.6.1924 and register of buildings were marked respectively as Ext. 'A', C, B, D, F, I & J and K. 25. On the side of the appellant the C.S. Map, R.S. Map were marked as Ext. 10 and 11. The deed of purchase and deed of gift, referred to in the plaint, were marked as Exts. 1 and 8, apart from exhibiting C.S. Khatian and R.S. Khatians marked as Exts. 5, 6 & 7 series. We find from the pleading in the previous suit being Title Suit No. 107 of 1989 that the appellant and Pagal Barat, the respondent No. 3 had sailed in the same boat regarding their alleged source of time. From the finding of both the Courts in the previous proceedings in respect of possession over the suit plot had gone not against only the appellant but also as against the respondent No. 3 - Pagal Barat. Thus said Pagal Barat though also was affected by result of the previous proceedings did neither file independent suit nor prefer any appeal nor even file any cross-appeal or cross-objection in the present proceeding. 26. Basic facts, which are kept undisturbed since the earlier proceedings, as we find also from Ext. D, E and F, are as follows:- "(i) Satish Karmakar and Fakir Karmakar being two brothers were owners of suit plot No. 32 initially having its total area of 1.85 acre and their names were recorded in the C.S. record of rights Ext. 5. (ii) Satish Karmakar and Fakir Karmakar having settled 48 decimals in favour of Sripati Haldar remained owner of the remaining 1.37 acre each having half share in the same. 5. (ii) Satish Karmakar and Fakir Karmakar having settled 48 decimals in favour of Sripati Haldar remained owner of the remaining 1.37 acre each having half share in the same. (iii) Satish Karmakar having died intestate as bachelor leaving Fakir Karmakar as his sole heir as full brother, Fakir Karmakar became absolute owner to said 1.37 acre described in schedule 'Ka' of the plaint." 27. The appellant in paragraph 7 of the plaint of present suit contended that the constructions of the office of the Circle Inspector was raised over Eastern half of Ka schedule on the assurance of its acquisition in future and under permission of the appellant's father quarters of the Circle Inspector were allowed to be constructed to any for occupying the same as a licensee in lieu of licence fee or occupational rent @ Rs. 250/- per month. We took note that in the previous suit No. 107 of 1989 the plaintiff averred in paragraphs 7 & 9 that in the Eastern portion of 1.37 acre of the suit plot office-cum-quarters of the Circle Inspector Khatra was constructed under permission of previous owners Fakir Karmakar and Satish Karmakar and further averred that on approach of the police department and in view of permission of the appellant's father in 1972 one office room of the Circle Inspector was constructed in the Kha schedule i.e. Western part of the suit plot covering 68 decimals on condition that police department would pay Rs. 250/- as rent. It was contended in both the suits that the appellant could not trace out rent receipts. It is established, as an admitted situation, that the present suit is the 3rd round litigation at the instance of the appellant in respect of the suit plot and in all three suits the state and the Circle Inspector, Khatra were made parties apart from Pagal Barat present respondent No. 3. In the first one plaint was withdrawn. The 2nd one being Title Suit 107/1989 was dismissed which was affirmed in appeal against which there was no second appeal. Let us now deal with the observations of both the Courts in the previous proceedings in respect of the right claimed by the appellant and the defence set up by the State. 28. The 2nd one being Title Suit 107/1989 was dismissed which was affirmed in appeal against which there was no second appeal. Let us now deal with the observations of both the Courts in the previous proceedings in respect of the right claimed by the appellant and the defence set up by the State. 28. In the previous suit the appellant was examined as P.W. 1 on 12.3.1991 wherein he stated his age as about 26 years and drew his knowledge from the age of 13 years. Thus in or about 1965 he was born. Therefore, he was a thoroughly incompetent witness to say anything about the incidents even relating to the deed of purchase executed by Fakir Karmakar in the year of 1962 either in favour of his father Kalachand Barat covering Western 68 decimals of the suit plot or covering eastern 69 decimals in favour of respondent No. 3, or even about the case of licence or tenancy of the then Circle Inspector Khatra under his father Kalachand Barat, far to speak of about the case of licence during tenure of Fakir Karmakar, specially when not a single rent receipt could be produced. Alibi of course was taken towards non-availability of rent receipt due to death of his father. Learned Trial Court in Title Suit 107/1989 (Ext-D) held, "considering all these documents along with corroborative evidence it is held that plaintiff has acquired title in respect of 48 sataks of suit plot 32 as described in 'Kha' schedule. It is further held that defendant No. 5 has also acquired title in respect of 49 sataks of the suit plot". Be it noted that Pagal Barat present respondent No. 3 was pro-forma defendant No. 5 in the previous suit. But learned Trial Court in the previous suit further held:- "The plaintiff has failed to substantiate his case by sufficient evidences to the effect that the said office and quarters were constructed on permission of Fakir and/or Satish with condition of monthly rent of Rs. 250/- payable by the police department. But learned Trial Court in the previous suit further held:- "The plaintiff has failed to substantiate his case by sufficient evidences to the effect that the said office and quarters were constructed on permission of Fakir and/or Satish with condition of monthly rent of Rs. 250/- payable by the police department. Considering all these facts and evidences it can be safely held that the plaintiff and his predecessor as well as the defendant No. 5 have no manner of possession over the suit property since inception of C.I.'s office and quarters in the suit property though they have acquired title to the suit plot by virtue of their respective purchase." The Trial Court further held, "Since the plaintiff is not in possession over the suit property, he is not also entitled to get the decree for declaration without any prayer for recovery of khass possession." In Title Appeal 18/1992 (Ext. F) learned Appellate Court observed that the plaintiff in his pleading took inconsistent plea that the police department is the licensee and tenant. Though on facts the plaintiff is entitled to take inconsistent plea but the same appears to be destructive as a ground to weaken the case of the plaintiff. However Learned Appellate Court held in Ext. F:- "But it appears from the sale deed executed by Fakir Karmakar in favour of Kalachand Barat on 18.6.62 (Ext. 5) and the deed-of-gift executed by the brothers of the appellant Rabin Barat on 12.12.85 Ext. 4 and the sale-deed executed by Fakir Karmakar in favour of Pagal Chandra Barat (respondent No. 4) as well from the evidence of P. W. 6 and P. W. 2 that there is no boundary of the property given in the deed. The schedule of the plaint does not also disclose the boundary of the land covered by the C.I.'s quarter and bungalow. The schedule of the plaint does not also disclose the boundary of the land covered by the C.I.'s quarter and bungalow. Therefore, the prayer made by the learned lawyer for the appellant for passing decree in respect of vacant land between C.I.'s office and quarter is also unidentifiable in view of Order 7 Rule 3 of the C.P.C. no effective decree could be passed." Upon such observation the appellate Court further held:- "Therefore, in view of this fact I am also of the opinion that the present suit is also not maintainable in its present form." "Since the plaintiff has failed to prove that the police department is a licensee or a tenant and since the suit if filed for declaration for confirmation of possession and for permanent injunction, the suit as framed is not maintainable and therefore, I do not find any reason to interfere with the findings of the Learned Munsifi and as such, the joint petition of compromise filed by defendant No. 5 along with the plaintiff-appellant cannot be recorded." Learned 1st Appellate Court in Title appeal 18 of 1992 (Ext. F) preferred by this appellant against the judgment of dismissal of the Title suit No. 107 of 1989 (Ext. D)held, at Page 13 of his judgment, "on perusal of the evidence it appears that the C.I.s. Office is in existence for more than about 50 years." Further learned Appellate Court observed at Page 14 "it is strange enough that since C.I.'s. office and quarter have been in existence for about more than 52/53 years as it appears from the evidence of D.W.4 Pagal and independent witness P.W. 6 Ganga Charan Chhatur." The Judgment was delivered by learned Appellate Court in April 1994 meaning thereby, the office of the C.I. has been existing upon the suit plot since about 1944. Learned Appellate Court therefore held at Page 14 in Ext. E, "it seems from the evidence of PW. 1, P.W. 4, P.W. 5 Dhiren Barat, P.W. 6, D.W. 1 Manasprosum Haldar D. W. 3, D. W. 4 and D. W. 5 that C.I.'s office and bungalow have been in existence for a long time and they know the existence either from the dawn of their knowledge or from their childhood. E, "it seems from the evidence of PW. 1, P.W. 4, P.W. 5 Dhiren Barat, P.W. 6, D.W. 1 Manasprosum Haldar D. W. 3, D. W. 4 and D. W. 5 that C.I.'s office and bungalow have been in existence for a long time and they know the existence either from the dawn of their knowledge or from their childhood. D.W. 4 was the defendant No. 5 of the previous suit as well as the uncle of the plaintiff and they were sailing on the same boat and from Ext. F we find that the appellant and Pagal Barat unsuccessfully entered into and submitted a joint compromise petition before the appellate Court which, of course, was not recorded rightly by the Appellate Court. According to him, the office of the Circle Inspector was situated in the east and west of the suit property and the vacant land is known as C.I.'s math and at the time of his examination-in-Chief on 19.12.1991 said Pagal Barat was 60 years of age. He had seen the existence of C.I.'s office as well as quarters since the dawn of his knowledge. It means Pagal Barat who was born in or about 1931 had also been seeing said police establishment since about 1940-41. 29. Learned Appellate Court in said Title Appeal 18 of 1992 rightly observed that although there was existence of the office of the Circle Inspector upon the suit plot since long back but curiously the recitals of the deeds of 1962 or even the deed of gift executed by the brothers and sister of the appellant on 16.12.1985 remained absolutely silent about those buildings. Learned Appellate Court accordingly observed "but it is strange enough that the recitals of the sale-deed (Ext. A) executed by Fakir Karmakar in favour of Pagal Chandra Barat, the uncle of the plaintiff and the sale-deed executed by Fakir Karmakar in favour of Kalachand Barat (Ext. 5) nor the deed-of-gift executed by the brothers and sisters of the plaintiff (Ext. 4) contains any recitals in those deeds about existence of C.I.'s Office and the bungalow. On the contrary, the sale-deed shows as if there is nothing thereon. The recitals in the sale-deed (Ext. 5) and Ext. 5) nor the deed-of-gift executed by the brothers and sisters of the plaintiff (Ext. 4) contains any recitals in those deeds about existence of C.I.'s Office and the bungalow. On the contrary, the sale-deed shows as if there is nothing thereon. The recitals in the sale-deed (Ext. 5) and Ext. A runs as if the suit property is free from all encumbrances and the vendor did not encumber the suit property in any way nor he transferred, nor he charged the property nor granted patta either permanently or temporarily. Since the alleged transfer to the father of the plaintiff and the defendant No. 5 were voluntary one so the principles of constructive notice is also applicable in this case." 30. Learned Appellate Court in earlier appeal (Ext. F) observed that Ganga Charan Chhatur who was examined as P.W. 6 in the earlier suit in favour of the appellant was examined on 16.12.1991 while he was aged about 70 years, meaning thereby, he was born in 1921. Learned Appellate Court further observed that his evidence goes to show that since his childhood he had seen the C.I.'s Office in the suit property and the suit relates to boundary of the C.I.'s. Office. His evidence shows that C.I.'s. Office and Bungalow were in existence at least for more than 50-54 years. We find that, since Learned Appellate Court in the previous proceeding did not accept the case of licence or tenancy as contended by the appellant for want of any scrap of paper. We thereby find that the above findings made in Title Appeal No. 18 of 1992 which was disposed of on 30 April, 1994 are final and conclusive, as there was no further appeal preferred against said judgment in Title Appeal 18 of 1992. We find that despite taking almost similar plea on the same facts and cause of action in the present suit, the appellant could not even develop the case of licence or tenancy of the Circle Inspector Khatra either under Fakir Karmakar or under his father Kalachand Barat, since deceased, by producing legal evidence. 31. Mr. We find that despite taking almost similar plea on the same facts and cause of action in the present suit, the appellant could not even develop the case of licence or tenancy of the Circle Inspector Khatra either under Fakir Karmakar or under his father Kalachand Barat, since deceased, by producing legal evidence. 31. Mr. Chatterjee submitted that though in the earlier suit title of the appellant was established, however, the suit was dismissed for not incorporation of the relief for recovery of possession and so the Trial Court in the previous suit held that the suit was barred under section 34 of the Specific Relief Act. It is obvious that title of a lawful owner is always supposed to be followed by possession but when the appellant was so confident that his title was established in the previous suit then it is surprising that what had prevented the appellant from filing the instant suit afresh keeping the old wine in a new bottle instead of amending the plaint of the previous suit even at the appellate stage. Therefore, the learned Trial Court in the impugned judgment very rightly held, "I have no hesitation to say that it was within the knowledge of the plaintiff at the time of filing earlier suit being T.S. No. 107/89 that he had no possession over the suit-land, but concealing that fact he filed that suit for declaration of title and permanent injunction and when said suit was dismissed with the findings that he has no possession, which was affirmed by appellate Court in Title Appeal No. 18/92, he (plaintiff) filed the present suit for declaration of title and recovery of possession, alternatively with other relief’s. Plaintiff had scope to amend the plaint of T.S. 107/89 and to pray for recovery of possession but he did not do so and he had also scope to pray for recovery of possession before the Ld. Appellate Court by amending the plaint, which he also did not do so. So, it can safely be said that he (sic the) plaintiff has not come with clean hands." "Learned Trial Court taking note of the findings of earlier proceeding held, "As plaintiff has no possession over the suit property for more than 53 years, I have no hesitation to hold that the suit is barred by limitation and also barred by Sec. 34 of S.R. Act. At the same time, it can safely be said that when plaintiff's suit praying for declaration and injunction was dismissed and the same was confirmed, the plaintiff cannot pray for further declaration of title in the present suit in view of settled principle of res judicata and for which the present suit is barred by principles of res judicata also." Mr. Chatterjee tried to justify the answer by citing the case of Shri Inacio Martins (supra) fact of which is as follows:- "Former suit filed by plaintiff for declaration that he was lessee and for injunction restraining defendants from interfering with his possession of suit property. Dismissal of that suit on technical ground that plaintiff was no more in possession of suit property and a suit for mere declaration cannot lie. Subsequent suit for declaration of plaintiff as tenant and for recovery of possession. Not barred by principles of res judicata since question of status of plaintiff as lessee was not barred, by O. 2, R. 2(3) since causes of action were different." 32. To attract the principle of res judicata, section 11 of the Code of Civil Procedure postulates five tests namely:- "(i) previous adjudication of the matters in issue which are of three types viz., (a) issues of fact, (b) issues of law and, (c) mixed issues of law and fact, (ii) the previous proceeding is binding on the same parties or between the parties under whom they or any of them do claim, (iii) parties to the subsequent suit must have litigated under the same title or in same capacity in the former suit, (iv) the former suit has been adjudicated by the Court of competent jurisdiction, and, (v) the matters directly or substantially in issue in the subsequent suit must have been heard and finally decided in the previous suit." 33. We find that the alleged right of the appellant was founded in the present suit on the same title deeds referred to in the previous suit. Subject matter of both the suits, more precisedly to say about the property described in schedule "Ka" being appertained to 1.37 acre and schedule "Kha" appertained to Western 68 decimals, were the same; main prayers of both the suits being substantially the same with some additions in the latter which could have been opted in the previous suit. Subject matter of both the suits, more precisedly to say about the property described in schedule "Ka" being appertained to 1.37 acre and schedule "Kha" appertained to Western 68 decimals, were the same; main prayers of both the suits being substantially the same with some additions in the latter which could have been opted in the previous suit. However, those prayers with some variation in the present suit would get favourable consideration subject to overcoming the hurdles in the main prayers already decided in the previous suit, - on the issues of limitation, maintainability and applicability of section 34 of the Specific Relief Act. 34. It is a settled law that cause of action means a bundle of facts determining the nature of the suit where assertions are made to seek relief’s that may be available under relevant law. In the instant suit the appellant by asserting some facts almost in the same tune, disclosing the same source of right, title and interest, as it was done in previous suit, alleged that cause of action of this fresh suit arose from 8.7.1991 since filing of written statement by State in the previous suit, whereas, in the previous suit it was contended to have been arisen on and from 26.7.1989 while the appellant on the basis of erroneous recording of suit property in K.B. Settlement was being threatened of dispossession. 35. We have observed that in the previous proceedings the appellant had claimed title through one deed dated 18.6.1962 taking the plea that respondent Nos. 1 and 2 were tenant or licensee under the original owner Fakir Karmakar and then under the appellant's father Kalachad Barat, since deceased. We have also observed that the said case of licensee or tenancy was not proved in the previous proceedings. Rather the possession of the office of the Circle Inspector upon the suit plot was established since after CS operation. Therefore, the present suit is filed afresh in a circuitous manner for the self-same property is barred by the principles of res judicata. We find that the matter in issue of both the suits are same, the parties of the present suit are identical with the previous one, suit plot and suit property of both the proceedings are the same and both the proceedings have been adjudicated by applying judicial mind by competent courts having jurisdiction. We find that the matter in issue of both the suits are same, the parties of the present suit are identical with the previous one, suit plot and suit property of both the proceedings are the same and both the proceedings have been adjudicated by applying judicial mind by competent courts having jurisdiction. And lastly the matters which are directly substantially in issue, and the matters as tried to ventilate in the present suit were noticed to be substantially in issue in previous proceedings, all the five tests required to attract section 11 of the Code of Civil Procedure are well prevalent. We find as the issue regarding maintainability of the suit and the issue as to whether the suit was barred by section 34 of the Specific Relief Act and the law of limitation have finally been decided in the previous suit, the judgment in Shri Inacio Martins (supra) is distinguishable and not applicable to reopen the issue No. (v). 36. Now the question arises as to whether the evidence adduced on behalf of the respondent State is in tune of the purported acquisition of the suit plot measuring 4 big has of standard measurement equivalent to 1.32 acres can be entertained or not since in the earlier proceeding they were unable to produce evidence to that effect. Alternatively, whether the respondent-state is entitled to press those evidence challenging the finding of the Trial Court holding against the State who neither preferred appeal nor filed cross objection. The relevant part of such adverse finding of the learned Trial Court is set out hereunder:- "Ext. 'K' i.e. Register of Lands and Buildings (2 sheets), wherefrom it is seen that Govt. acquired 1.32 acres of land for Inspector's quarters and office vide Notification No. 5421 L.A. of 16.6.24. Neither in Ext. 'J' nor in Ext. 'A' or Ext. 'K' the plot number, the lands of which was acquired by Govt. has been mentioned. There is no explanation on this point from the side of defdts. Plot number of the acquired land should have been mentioned in the above exhibited documents. As it has not been mentioned, this court is completely in dark regarding Declaration, Notification and Acquisition of suit-plot No. 32 by Govt. Moreover, no documents, whatsoever, has been filed by the deft/state to show that Govt. Plot number of the acquired land should have been mentioned in the above exhibited documents. As it has not been mentioned, this court is completely in dark regarding Declaration, Notification and Acquisition of suit-plot No. 32 by Govt. Moreover, no documents, whatsoever, has been filed by the deft/state to show that Govt. on acquisition of 1.32 acres of land of suit-plot No. 32 paid award either to Fakir Karmakar or to Satish Karmakar. So, I hold that the alleged fact of acquisition is not proved." The provisions under Order 41 Rule 22 and Rule 33 of the Code of Civil Procedure are set out hereunder:- "Upon hearing respondent may object to decree as if he had preferred a separate appeal- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit allow. Explanation-A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. "Rule 33:- Power of Court of Appeal:- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees): (Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refuse to make such order.)" 37. Paragraph 21 of the judgment of Hardevinder Singh (supra) is set out to get further answer in the tune of the provision of law quoted above. "After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In Banarsi v. Ram Phal, it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been averted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but (emphasis supplied to the word "but") there is a finding in the judgment which goes against him, in the preamendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of the Explanation to sub-rule (I), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him (emphasis supplied) as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code." It is pertinent to note that the judgment of Banarsi v. Ram Phal, (supra) was also considered in the judgment of Hardevinder Singh (supra). Now the term of decree is defined under section 2 sub-section (2) of the Code which is set out hereunder:- Sub-section (2):- "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit any may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;" Therefore, in view of the provision of law which has been enunciated by the Supreme Court, we find that if the decree entirely remained in favour of the respondent by dismissing the suit without allowing any part decree, then it is not necessary for the respondent to file any cross-objection challenging any finding on any issue which had gone against him. Herein the impugned decree entirely, and not a part thereof, has gone against the appellant. Hence, since the decree has gone against the appellant as the suit was dismissed in its entirety, therefore the respondent Nos. 1 and 2 would neither be prejudiced or affected by such decree of dismissal even if the appellant does not proceed with the appeal. Thus, we hold that the respondent in the said situation is entitled to argue on any adverse finding of the trial Court even without filing cross-objection. 38. Since the respondent State has been able to produce some evidence in the tune of the alleged case of acquisition marked as Ext. A, J & K, let us now consider its acceptability. In the previous suit as well as in the present suit it is the definite case of the respondent that during ownership of Fakir Karmakar and Satish Karmakar the suit plot measuring 1.32 acre was acquired by the State for the purpose of setting up the office and quarters of the Circle Inspector Khatra. Gazette Notification dated June 18, 1924 regarding notice issued under section 4 of Act I of 1894 notifying requirement by the Government to acquire portions of land measuring more or less 4 big has of standard measurement equivalent to 1.32 acres bounded by North "by road to Ambicanagar, East and West by the Lands of Fakir Karmakar and Satish Karmakar and South by road to Ranibandh and track" vide notification marked as Ext. J. Sometimes after that, on November 27, 1924 Gazette notification was published notifying declaration under section 6 of the Act I, 1894 requiring same 1.32 acres of land bounded by the same boundaries with reference to the Notification No. 9406 L.A. 24th November, 1924 for a public purpose for the Police Inspector's quarters which was bounded on the North "by road to Ambicanagar, East and West by the Lands of Fakir Karmakar and Satish Karmakar and South by road to Ranibandh and track." Ext. K was the other printed old document in the name of "Register of Lands and Buildings", where name of the police station was mentioned as "Khatra Circle Inspector". There, in the column "area of land occupied" it was mentioned "1.32 acres or 4 bighas", against the column "boundaries of land" it was mentioned, "North-Road to Ambicanagar, East & West- By lands of Fakir Karmakar, South-by road to Ranibandh Track, and against the column No. 4 "if acquired, date of acquisition and No. and date of notification in Gazette"- it was mentioned "1.32 acres of land acquired for (illegible as it was severely torn) vide Notification No. 5421 L.A. of 16.6.24. This entry on the original prescribed form of the Register of lands and buildings bears also initial of the officer so entered in it. The original document is lying with the record in very torn condition. We noticed some significant features from such Ext. 'K' which are as follows:- "(a) The paper used is very old and ancient as it appears from its colour and crispiness. (b) It is an original. (c) The fadeness of black ink used by pen therein by the Officer bears characteristics of its ancient age removing scope of fabrication for the purpose of this suit. (d) Descriptions of boundaries are absolutely identical to Ext. A or Ext. J. (e) Number of notification 5421 L.A. of 16.6.24 was also referred to in Ext. "J". (f) The Ext. "A", "J" and "K" have been produced of late from the custody of the Government." 39. It is the definite case of the respondent-state that the land measures 1.32 acre of the suit plot, total area of which was 1.85 acre as is evident not only from the C.S. record but also from the report of local inspection Commissioner's Report (Ext. 9). From the report of the Commissioner Ext. It is the definite case of the respondent-state that the land measures 1.32 acre of the suit plot, total area of which was 1.85 acre as is evident not only from the C.S. record but also from the report of local inspection Commissioner's Report (Ext. 9). From the report of the Commissioner Ext. 9 we find also existence of not only the office but also the quarter premises of the police department Khatra covering Eastern-Western part of such suit plot 32. We may remind ourselves that the suit is filed for declaration of title and recovery of possession from Western 68 decimals described in schedule "Kha" or alternatively for suit for partition in the property described in schedule "Ka", since according to the appellant remaining 69 decimals allegedly belonged to respondent No. 3 Pagal Barat by virtue of a separate deed dated 18.6.1962 allegedly purchased from Fakir Karmakar. We have already observed that Pagal Barat had sailed on the same boat by not filing written statement in the previous suit and also joining hand unsuccessfully in filing one joint compromise petition only with the appellant in Title Appeal 18 of 1992 (Ext. F) and did not come forward to claim his title over the Eastern 69 decimals of suit plot 32 in any form. Therefore as relief for recovery of possession is hit under Article 65 of the Limitation Act, 1963, hence the answer to the issue No. (iii) is in the affirmative. 40. From Ext. 'G' the finally published K.B. Khatian we took note that plot No. 32 measuring 1.37 acre Bastu has been recorded in the name of Circle Inspector of the Police department Bankura on behalf of the West Bengal Government. Such finally published record is also a valuable piece of document of possession of the suit plot by the State of West Bengal, which has its own presumptive value, which could not be rebutted by the appellant save and excepting alleging the same as erroneous. 41. Question was raised during argument that had there been acquisition of land as claimed by the State where were the proof of payment of award. Of course, it is a very pertinent point. But, when such minimum documents like Ext. "A", "J" and also "K" coupled with Ext. "G" have been produced by the respondents then learned Trial Court should not hold, "Neither in Ext. 'J' nor in Ext. Of course, it is a very pertinent point. But, when such minimum documents like Ext. "A", "J" and also "K" coupled with Ext. "G" have been produced by the respondents then learned Trial Court should not hold, "Neither in Ext. 'J' nor in Ext. 'A' or Ext. 'K' the plot number, the lands of which was acquired by Govt. has been mentioned......................" and also should not hold, "Moreover, no document, whatsoever, has been filed by the deft/state to show that Govt. on acquisition of 1.32 acres of land of suit-plot No. 32 paid award either to Fakir Karmakar or to Satish Karmakar. So, I hold that the alleged fact of acquisition is not proved." 42. So far as the payment and receipt of compensation award under Land Acquisition Act are concerned it was within the competence of only Fakir Karmakar and Satish Karmakar who could have claimed the same had it not been paid to them in view of acquisition of such land. Question would come that since Fakir Karmakar sold out the suit plot measuring 1.37 acre to Pagal Barat and Kalachand Barat then why they or their successors would come to opt for any such claim of award anymore! This, of course, may be a fallacy but cannot be accepted in view of the present facts, circumstances and evidence established in the case. Because in view of losing possession from 1.32 acre of land of suit plot 32 due to acquisition by State Fakir and Satish had no more locus to execute any deed on 18.6.1962. The said execution of deeds ipso facto did not confer any right or title to the recipients of the deeds, as the executants had already become out of possession from the property covered by the deeds due to acquisition of 1.32 acre of suit plot, and they accordingly had no more transferable right in respect of that portion of suit plot. Eventually the appellant since the tenure of his father Kalachand Barat since deceased, had also no occasion to exercise any act of possession upon the suit property described in schedule 'Kha' of the Plaint. Therefore, the deeds of the appellant, as referred to in the plaint remained simply as paper transaction without conferment of any right. 43. Eventually the appellant since the tenure of his father Kalachand Barat since deceased, had also no occasion to exercise any act of possession upon the suit property described in schedule 'Kha' of the Plaint. Therefore, the deeds of the appellant, as referred to in the plaint remained simply as paper transaction without conferment of any right. 43. We also took note of the fact that there is nothing on record that Pagal Barat, the respondent No. 3, who was also a party to the previous title suit No. 107 of 1989 though lent support to the case of the appellant for obvious reason stretching his case in the same line so far as his eastern 69 decimals covered by the deed dated 18.6.1962, could not also produce any document exercising act of possession over the alleged eastern 69 decimals of suit plot. Therefore, earlier suit having been dismissed and findings of the same having been affirmed in Title Appeal 18 of 1992, the same would act as res judicata within the provision of section 11 of the Code of Civil Procedure relating to the subject matter of the suit between the same parties. Said Pagal Barat not even entered appearance in this appeal to join hand with the appellant. 44. It is nobody's case that there was ever any acquisition after 18.6.1962. The recitals of the deeds also did not disclose about existence of any such office or quarters of police department though to their knowledge the same were in existence upon the suit plot since sometimes after the C.S. Operation. Learned Trial Court did not accept Exts. "A", "J" or "K" since number of plot and khatian number were not mentioned therein. We observed that the trial Court failed to appreciate the identical descriptions of boundaries as mentioned in all those three ancient documents, and, failed to take note that in the year 1924-25 when the acquisition was so held the property was identified with four boundaries by mentioning its area, since mentioning plot number etc. had been started only after cadastral survey. Moreover, we find that it was nobody's case that the establishment of the Circle Inspector Khatra was set up elsewhere within Khatra other than the suit plot. Therefore, we set aside the observation of the trial Court and the reason thereof in not accepting the Ext. had been started only after cadastral survey. Moreover, we find that it was nobody's case that the establishment of the Circle Inspector Khatra was set up elsewhere within Khatra other than the suit plot. Therefore, we set aside the observation of the trial Court and the reason thereof in not accepting the Ext. A, J & K as have been produced by the respondent as the evidence in support of its defence of acquisition. Those are all official documents produced lately in the present suit by the respondent. Those documents obviously bear official acts on record done stage wise and date wise in the matter of procedure of acquisition of land for public interest. Sanctity of those documents could not be demolished by cross-examination of the defence witness. 45. In view of section 114(e) of the Indian Evidence Act we find that the rule is embedded in that illustration. Where any official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity also were complied with to fulfil the maxim: "Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium" i.e. everything is presumed to have been rightly and duly performed until contrary is shown by strong evidence." Since the gazette notifications are of the year 1924, those are obviously ancient. Hence those have valuable bearing to draw presumption that official acts are presumed to have been done in a regular and legal manner. Since such official documents are incapable of being easily procured as evidence for the purpose of present proceeding, those public document of 1924 give rise to draw strong presumption that without acquiring the portions of land measuring more or less 4 bighas i.e. 1.32 acre of suit plot No. 32 (of which schedule 'Kha' is a part) by the State performing all formalities including payment of award, the department of police at Khatra would have never built after spending from the Government fund. In this regard it is appropriate to refer to the relevant portion from paragraph 2A of the judgment of State of Bihar v. Dhirendra Kumar and Others reported in AIR 1995 Supreme Court 1955 which is as follows:- "The provisions of the Act are designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The State is enjoined to comply with statutory requirements contained in S. 4 and S. 6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1894. In publication of the notifications and declaration under S. 6, the public purpose gets crystallised and becomes conclusive. Thereafter, the State is entitled to authorise the Land Acquisition Officer to proceed with the acquisition of the land and to make the award."............. "We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil Court to take cognizance of the case under S. 9 of C.P.C. stands excluded, and a civil Court has no jurisdiction to go into the question of the validity or legality of the notification under S. 4, and declaration under S. 6, except by the High Court in proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable." Therefore, Civil Court has no jurisdiction to examine the legality of the acquisition, if any, done by the State for the public interest. Whether award money was paid or not, or whether documents of acquisition are valid or not, because the remedy pertaining to said fact, lies elsewhere it can be challenged by a competent person and not by a stranger. But whether any land was acquired or not the Civil Court obviously can take note of the fact by accepting the competent and legal evidence if adduced in a civil proceeding. Now examining the documents namely Ext. 'A, 'J' & 'K' we hold that the Civil Court had no jurisdiction but to accept those public documents as it stood with a presumptive value under section 114(e) of the Indian Evidence Act, since those were documents forming the acts or records of the acts and were very much public documents within the meaning of section 74(1) of the Evidence Act. Thus in absence of any evidence showing fabrication of the documents like Ext. Thus in absence of any evidence showing fabrication of the documents like Ext. A, J or K, and though the same could not be placed by the State in the previous suit should not be thrown away as those are public document in nature and it was the same appellant who being unsuccessful in the previous proceeding upto 1st appeal filed this fresh suit disclosing similar source of his alleged right again after about 7 months as a third round battle. 46. We find that another important aspect was overlooked by learned Trial Court that the suit plot which was initially was appertained to C.S. Khatian No. 49 having total area 1.85 acre, and though 1.37 acre out of its total 1.85 acre have been separated and recorded during revisional settlement in R.S. Khatian No. 408/1 (Ext. 6), Khatian 118 (Ext. 7), Khatian 119 (Ext. 7a), Khatian 120 (Ext. 7b), Khatian 121 (Ext. 7c) pertaining to suit plot 32 and its Bata plots, recording names of the respective the then raiyats, but all such Khatians were retained by the State, meaning thereby, the property of all those Khatians appertained to plot No. 32 initially-belonging to Fakir & Satish Karmakar and others had been retained by this State, which now speaks a volume as a corroboration in favour of the fact of acquisition of 1.32 acre of the suit plot as contended by the respondent-state. We also find that the property, so acquired was correctly recorded in the L.R. Khatian No. 1045 which was finally published in the name of Circle Inspector of Police, Khatra, marked as Ext. "G" having existence of three buildings along with one Petrol Pump therein. Therefore, the portions of land belonging to Fakir and Satish Karmakar while already had come to the possession of the State by virtue of acquisition, and the State had retained it by making entry also in the R.S. Khatian Ext. 6 and the appellant or his father having not been found to exercise ever any act of possession upon the suit plot upon assertion of alleged title in view of the deed dated 18.6.1962 or 16.12.1985, we resettled the issue No. (xi) answering in the manner as indicated above. Issue Nos. 6 and the appellant or his father having not been found to exercise ever any act of possession upon the suit plot upon assertion of alleged title in view of the deed dated 18.6.1962 or 16.12.1985, we resettled the issue No. (xi) answering in the manner as indicated above. Issue Nos. (iii), (xiii) & (xiv) are accordingly answered in the affirmative by setting aside the finding of the Trial Court who wrongly held "the alleged fact of acquisition is not proved." 47. On issue Nos. (vi) and (ix) learned Trial Court held it unnecessary to discuss in details. However, by resettling the foregoing issue Nos. (iii), (v) (xi), (xiii) & (xiv) we observe that the nature and characteristics in respect of the subject matter of the suit has got a different dimension unlike a suit simpliciter for declaration and recovery of possession. Therefore in the circumstances these two issues are virtually redundant to answer on either side since it has no effect upon the result of the suit. 48. The Trial Court did not discuss the issue No. (iv) since the suit is held not maintainable by him. Be that as it may, during discussing issue Nos. (iii), (v), (xi), (xiii) & (xiv) we have taken note of the findings of both the Courts in the previous proceedings which conclusively ended between the parties over the self-same subject matter of the suit up to the first appeal. Therefore, by not offering any claim against the State, by Fakir Karmakar or Satish Karmakar as against case of acquisition it will be deemed that the principles of estoppel, waiver and acquiescence shall come into play also against the appellant since the appellant claimed the right stepping into the shoes of Fakir Karmakar and also Pagal Barat who unsuccessfully lent support to the appellant also stepping into the shoes of said Fakir Karmakar. This issue No. (iv) is thus resettled answering in the affirmative. 49. Mr. Chatterjee rightly criticized that the State since, it took the defence of adverse possession and learned Trial Court ignoring the evidence adduced on behalf of the State wrongly held that the State acquired title by adverse possession. 50. We took the note of the deposition of D.W. 1 who stated in cross examination, "not a fact that we acquire title through adverse possession on the plot. 50. We took the note of the deposition of D.W. 1 who stated in cross examination, "not a fact that we acquire title through adverse possession on the plot. But we have acquired title on the plot through acquisition", Learned Trial Court held, "I have no hesitation to hold that the defendant-State through C.I. of Police has been continuously possessing the suit property and buildings thereon etc. more than 53 years by asserting its hostile title against all the persons of the world including plaintiff his father and his vendor and thus the defendant-State has acquired good indefeasible title by virtue of adverse possession thereon". It is not also supposed to lay claim of title by the State over any property of a subject by way of adverse possession which is vigorously criticised by the Hon'ble Supreme Court in the judgment of State of Haryana v. Mukesh Kumar Sharma (supra). However, in view of the evidence of the D.W.I quoted above since the State did not press their claim over the suit plot by virtue of adverse possession in evidence on oath the finding of the learned Trial Court in favour of the state towards its acquisition of title by adverse possession is held to be perverse and thus is set aside. Issue No. (xii) is thus answered in the negative. 51. In view of reassessment of the evidence on record and observations made above and on accepting the case of acquisition of 1.32 acre of the suit plot No. 32, the issue Nos. (iii), (iv), (v), (xi), (xiii), (xiv) having been decided against the appellant, we hold that there being no fresh cause of action in the suit, and the suit thereby being not maintainable, and the appellant having no right, title, interest in view of findings in the foregoing issues, the issue Nos. (i), (ii), (vii), (viii), (x) the judgment and decree of the Trial Court passed by learned Civil Judge (Senior Division) Bankura of 15th day of December, 2005 in title Suit No. 14 of 1996 is hereby upheld and the appeal being F.A. No. 79 of 2009 is dismissed on contest against the respondent Nos. 1 & 2 with cost of Rs. 340/- payable by the appellant and ex parte against the rest without cost. The Lower Court record be returned along with a copy of this judgment. 1 & 2 with cost of Rs. 340/- payable by the appellant and ex parte against the rest without cost. The Lower Court record be returned along with a copy of this judgment. Urgent Photostat certified copy be supplied to the parties, if applied for be furnished on priority basis. Soumitra Pal, J. I agree.