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2017 DIGILAW 948 (CAL)

Manik Singh v. Chanchal Prasad Singh

2017-12-04

JYOTIRMAY BHATTACHARYA, SAHIDULLAH MUNSHI

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JUDGMENT : Jyotirmay Bhattacharya, J. SAT No. 544 of 2016 A note of defect was given by the Stamp Reporter as the certified copy of the decree of the appeal court has not been filed along with the Memorandum of Appeal. 2. Mr. Roy, learned advocate, appearing for the appellants submits an Information Slip from the concerned court showing that the decree has not yet been drawn up by the appeal court. 3. Let the Information Slip, which is given by the court concerned be kept with the record. 4. The appeal court is directed to supply the certified copy of the decree of the First Appellate Court immediately after the same is drawn up and the certified copy thereof is supplied to the appellants. The concerned appeal court is also directed to draw up the decree dated 16th September 2016 passed in Title Appeal No. 09 of 2002 within two weeks from the date of receipt of this order. 5. The Registry is directed to communicate this order to the court concerned immediately. 6. This Second Appeal is directed against the judgment and decree dated 16th September 2016 passed by the Learned Additional District Judge, Fast Track, 2nd Court, Islampur, District Uttar Dinajpur in Title Appeal No. 09 of 2002 affirming the judgment and decree dated 16th March 2002 passed by the Learned Civil Judge (Junior Division), Islampur, District- Uttar Dinajpur in Title Suit No. 165 of 1992 at the instance of the plaintiffs-appellants. 7. Let us now consider as to whether any substantial question of law is involved in the second appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 8. The plaintiffs filed a suit for declaration of their right, title and interest in respect of three plots of land being R.S. Nos. 130, 131 and 33 measuring about 3.79 acres of land in total. They claimed that they purchased the said plots from different vendors by registered Deed of Kobalas dated 25th April 1967. 8. The plaintiffs filed a suit for declaration of their right, title and interest in respect of three plots of land being R.S. Nos. 130, 131 and 33 measuring about 3.79 acres of land in total. They claimed that they purchased the said plots from different vendors by registered Deed of Kobalas dated 25th April 1967. Since the defendants were trying to disturb their possession in respect of the suit property claiming their title over the suit property, the plaintiffs filed the instant suit for declaration of their right, title and interest over the suit property and for injunction for restraining the defendants from disturbing the plaintiffs’ possession in the suit property. The plaintiffs have also prayed for relief by way of correction of the erroneous entries in the R.S. records of rights. 9. The defendants contested the said suit by filing written statement denying the allegations made out by the plaintiffs in the plaint. It was stated that one, Bhondulal Singh had three sons, namely, Kamal Singh, Dhanlal Singh and Ganpat Singh. It was further contended that Kamal Singh was the karta of the joint family. They claimed that Ganpat died bachelor. According to them, Kamal and Dhanlal became the owners of eight annas share each in the suit property. Dhanlal Singh died leaving behind his son, Debnarayan Singh, and brother, Kamal Singh, and four daughters as his legal heirs and heiresses. It was contended by the defendants that Kamal Singh settled the lands on behalf of all the co-sharers to the defendant-respondent, namely, Debnarayan Singh, sometime in the year 1355 B.S. According to them by virtue of such settlement, Kamal Singh and others’ interest in the suit property was lost. It is further contended by them that since the time of obtaining such settlement, the defendant has been possessing the suit lands and cultivated the seasonal crops and had mango trees and bamboo clumps over there. It is further contended that the claims of the defendants were also recorded in the R.S. records of rights. They thus prayed for dismissal of the said suit as according to them the plaintiff’s vendor had no title over the suit property. As such, the plaintiffs could not acquire any title over the suit property by virtue of the purchase from their vendors. 10. Both the parties adduced evidence in support of their respective claims. 11. They thus prayed for dismissal of the said suit as according to them the plaintiff’s vendor had no title over the suit property. As such, the plaintiffs could not acquire any title over the suit property by virtue of the purchase from their vendors. 10. Both the parties adduced evidence in support of their respective claims. 11. The learned trial judge, after considering the pleadings of the parties and their evidence, dismissed the suit by holding that the plaintiff has failed to prove their title and possession over the suit property. The learned trial judge held that even before purchasing the suit property, the plaintiff ought to have consulted the attested copy of the R.S. records of rights. Having not done so, the plaintiffs cannot claim themselves to be bona fide purchasers. 12. Challenging the said judgment and decree of the learned trial court, the plaintiffs filed an appeal before the learned First Appellate Court. The learned First Appellate Court was pleased to dismiss the appeal. The learned First Appellate Court found that the plaintiffs have acquired title over the suit property by virtue of their purchase from their vendors. The learned First Appellate Court, however, held that the suit is barred under Section 34 of the Specific Relief Act, as the plaintiffs have not prayed for recovery of possession from the defendants in the said suit. The learned First Appellate Court held that the defendants are in possession of the suit property and in support of such conclusion, the learned First Appellate Court relied upon the entries in the R.S. records of rights as well as the khajna receipts which were produced by the defendants. Effect of non-production of the khajna receipts by the plaintiffs have also been considered by the learned First Appellate Court. Thus, though the learned First Appellate Court held that the plaintiffs have succeeded in establishing their title in the suit property but ultimately dismissed the said appeal by holding that the plaintiffs’ suit is barred under Section 34 of the Specific Relief Act. 13. The legality and the correctness of such judgment and decree of the learned First Appellate Court is under challenge in this second appeal before us. 14. We have heard Mr. Roy, learned advocate appearing on behalf of the appellants and considered the materials on record, including the judgment and decrees of the courts below. 15. 13. The legality and the correctness of such judgment and decree of the learned First Appellate Court is under challenge in this second appeal before us. 14. We have heard Mr. Roy, learned advocate appearing on behalf of the appellants and considered the materials on record, including the judgment and decrees of the courts below. 15. It is no doubt true that the names of the vendors of the plaintiffs were recorded in the C.S. records of rights but the R.S. records of rights shows otherwise. The names of the defendants were recorded in the R.S. records of rights. 16. The defendants are claiming their right in the suit property by virtue of the Deed of Settlement executed by the C.S. recorded owners. They are also claiming possession in the suit property, right from the date of obtaining the settlement of the suit property. The names of the defendants were recorded in the R.S. records of rights. 17. Presumption regarding possession recorded in the R.S. records of rights is no doubt rebuttable but no step has yet been taken by the plaintiffs to rebut the presumption attached to the recording in R.S. records of rights. The plaintiffs have not taken any step to get the alleged erroneous recording in the R.S. records of rights corrected through the proper channel. The plaintiffs have also failed to produce any khajna receipts showing that they have paid khajna to the State. On the contrary, we find that the presumption regarding the possession of the defendants as recorded in the R.S. records of rights remains unrebutted by the plaintiffs and coupled with the said fact, the payment of khajna by the defendants in respect of the suit property also weaken the plaintiffs’ claim for possession over the suit property. 18. As such, we are of the view that the learned First Appellate Court did not commit any illegality by dismissing the suit by holding that the said suit is barred by the provision of Section 34 of the Specific Relief Act. 19. The appellants however have filed an application for amendment under Order VI Rule 17 of Civil Procedure Code for incorporation of a relief by way of recovery of possession before this Court. 20. Drawing our attention to the said application, Mr. 19. The appellants however have filed an application for amendment under Order VI Rule 17 of Civil Procedure Code for incorporation of a relief by way of recovery of possession before this Court. 20. Drawing our attention to the said application, Mr. Roy, learned advocate, appearing for the appellants invited us to admit this appeal and send the appeal back on remand to the learned Trial Court after allowing the application for amendment. 21. Here is the case where we find that even in the R.S. record of rights, the names of the defendant were recorded. The R.S. record of rights was finally published in the year 1956. Though the plaintiffs alleged that they were dispossessed by the defendants some time in the year 1992; but still then, no relief for recovery of possession was claimed by them within the period of limitation. 22. Even if we allow the application for amendment permitting the plaintiffs to amend the plaint and thereby a relief for recovery of possession is allowed to be incorporated in the plaint, still then, we are of the view that such relief will be barred by limitation and as such, we do not find any justifiable reason in allowing the application for amendment and sending it back to the learned Trial Court for rehearing. 23. We, thus, do not find involvement of any substantial question of law in this Second Appeal. 24. We, thus, decline to admit this appeal under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 25. The appeal is, thus, dismissed. 26. Since the appeal is dismissed, the applications filed in connection with this appeal are deemed to be disposed of.