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2020 DIGILAW 162 (CAL)

Ajit Mahata v. Jotindra Nath Mahata

2020-02-07

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - This is an appeal challenging the Judgement and Decree passed by the learned Additional District Judge, 4th Court at Paschim Medinipur in Title Appeal No. 130 of 2007 on 25th February, 2008 reversing the Judgement and Decree passed by the learned Civil Judge (Junior Division), 3rd Court at Paschim Medinipur in Title Suit No. 77 of 1997 on 27th August, 2007. The plaintiff of the original suit is the appellant before this Court. 2. The plaintiff/appellant instituted Title Suit No. 77 of 1997 against the defendants who are his full brothers. It is alleged in the plaint that the suit property described in schedule 'ka' of the plaint is a piece and parcel of 'kha' schedule property. 'Kha' schedule property is described as land comprised in plot no. 260/507 of khatian no. 176 of mouza - Dengasole' within P.S. - Salboni, undivided Medinipur measuring about 1.02 decimal of land. Out of the said 1.02 decimal of land 'ka' schedule is the disputed property (hereafter described as suit property) measuring about 80 decimal of land. According to the plaintiff/appellant, Medinipur Zamindari Company Ltd. was the original owner of 'kha' schedule property. On or about 17th January, 1952, the said Medinipur Zamindari Company settled 80 decimal of land (suit property) in favour of the plaintiff. The plaintiff accepted the said settlement and subsequently executed 'kabulyat' on 20th February, 1953 in favour of the said Medinipur Zamindari Company Ltd. The said 'kabulyat' was duly registered. Since the date of settlement the appellant is in possession of the suit property. On or about 1404 B.S. corresponding to 1997 AD the defendants being the plaintiff's own brothers started disturbing the plaintiff in his peaceful possession over the suit property. When the plaintiff asked the defendants about the reason for causing such obstruction they disclosed that the suit property was recorded in equal share in R. S. Record of rights in the names of both the plaintiff as well as defendants. The defendants, therefore, claimed equal share of the suit property on the basis of such Record of rights. It was pleaded by the plaintiff that the entries in R. S. Record of rights in respect of the suit property are false, erroneous and not binding upon the parties to the suit. The defendants, therefore, claimed equal share of the suit property on the basis of such Record of rights. It was pleaded by the plaintiff that the entries in R. S. Record of rights in respect of the suit property are false, erroneous and not binding upon the parties to the suit. During the current settlement the plaintiff tried to raise objection against such wrong entries but the officers of Land and Land Reforms Department did not pay any hid to his objection. When the defendants started to obstruct peaceful possession of the plaintiff over the suit property, he filed the suit for declaration of his right, title and interest over the suit property and permanent injunction. The plaintiff also prayed for a declaration that the finally published R.S. Records of rights in respect of the suit property should be declared to be wrong and erroneous. 3. The defendants/respondents contested the said suit by filing written statement. It is ascertained from the case of the defendants that they denied of taking settlement of the suit property from Midnapur Zamindari Company Ltd. by the plaintiff. Specific case of the defendants is that they are the recorded raiyats in respect of the suit property and co-sharers with the plaintiff. They have been possessing the suit property and the Record of rights were correctly published. It is also pleaded by the plaintiff that one Srinibas Mahata filed objection case under Section 44 (1) of the West Bengal Estate Acquisition Act against both the plaintiff and the defendants. The said objection case was allowed and in the said case the plaintiff asserted that the settlement on the basis of registered 'kabulyat' dated 20th February, 1953 was correctly done and both the parties to the suit are in actual possession of the suit property. By amendment of written statement the defendants further stated that the father of the parties took settlement of 80 decimal of land in C.S. Plot No. 260 on 17th January, 1952 in the name of the plaintiff being the eldest son of the father of the parties. At the time of settlement, the plaintiff was a minor and he had no income to pay either one time salami or monthly rent to the said Zamindari Company. At the time of R.S. Settlement original suit plot no. At the time of settlement, the plaintiff was a minor and he had no income to pay either one time salami or monthly rent to the said Zamindari Company. At the time of R.S. Settlement original suit plot no. 260 was divided and 80 decimal of land is recorded in the names of the plaintiff and the defendants in respect of R.S. Plot No. 260/507 under khatian of 167 of mouza - 'Dengasole'. Thus, the defendants claimed the suit property by way of inheritance. On the basis of the pleadings, the learned Trial Judge framed as many as nine issues. Parties led evidence, both orally and documentary and on due consideration of evidence on record, the learned Trial Judge decided the issues in favour of the plaintiff and decreed the suit. 4. The defendants assailed the said Judgement and Decree passed in Title Suit No. 77 of 1997 by preferring an appeal being Title Appeal No. 130 of 2017. The said appeal was disposed of by Judgement and Decree dated 25th February, 2008 by the learned Additional District Judge, 4th Court at Paschim Medinipur allowing the appeal and setting aside the Judgement and Decree passed by the Trial Court. In view of such matter, the suit filed by the plaintiff was dismissed. 5. It is found from the record of the instant appeal that on 14th May, 2009, the Division Bench of this Court admitted the appeal for hearing on the following substantial questions of law: - (1) Whether the learned Judge in the Lower Appellate Court, substantially, erred in law in declaring the right, title and interest of the plaintiff to the extent of onethird share in the disputed property only relying upon the entries in the revenue settlement records of right? (2) Whether the learned Judge in the Lower Appellate Court, substantially, erred in law in holding that the suit is barred by the provisions of Article 113 of the Limitation Act, 1963 and under Section 115 of the Indian Evidence Act, 1872? 6. In course of hearing of the instant appeal this Court found that in addition to the substantial questions of law already formulated by the Division Bench of this Court, additional substantial question of law is required to be formulated under the provision of Section 100(5) of the Code of Civil Procedure. 6. In course of hearing of the instant appeal this Court found that in addition to the substantial questions of law already formulated by the Division Bench of this Court, additional substantial question of law is required to be formulated under the provision of Section 100(5) of the Code of Civil Procedure. Accordingly, this Court formulated the following additional substantial question of law :- (a) Whether both the Courts below substantially erred in law while deciding the issue of maintainability of the suit without considering the proviso to Section 34 of the Specific Relief Act and failed to consider that a suit for declaration of title under the facts and circumstances of the present case was not maintainable without the prayer for recovery of possession of the suit property against the defendants? 7. Mr. Jayanta Das, learned Advocate for the plaintiff/appellant submits that the case of the plaintiff is that Midnapur Zamindari Company Ltd. executed dole settlement in favour of the appellant on 17th January, 1952. The said dole settlement with the plan of the settled property in favour of the appellant was marked as Exhibit - 1 and Exhibit - 2 in the suit. The certified copy of the 'kabuliyat' was marked as Exhibit - 6. The letter of possession in respect of the suit property in the name of the plaintiff was marked as Exhibit - 2A, Record of rights in respect of the suit property were marked as Exhibit - 3 series, Exhibit - 4 series are the tax receipts in respect of the said suit property. The plaintiff able to establish convincingly by producing the document of settlement and registered 'kabuliyat' that he was the recorded tenant in respect of 80 decimal of land morefully described in schedule 'ka' of the plaint on the strength of the said patta and 'kabuliyat'. It is submitted by Mr. Das that right, title and interest over a piece of property depends on the document of title. In the instant case, the documents of title stand in the name of the appellant alone. The Record of rights may be erroneously published. However, it is a settled preposition of law that the Record of rights does not create any title. The evidentiary value of Record of rights is at best prima facie proved of possession of a piece of property which is also rebuttable. The Record of rights may be erroneously published. However, it is a settled preposition of law that the Record of rights does not create any title. The evidentiary value of Record of rights is at best prima facie proved of possession of a piece of property which is also rebuttable. Therefore, Record of rights does not have a conclusive proof even in respect of possession of the suit property. Title follows possession. Title stands in the name of the plaintiff/appellant. The learned Judge in First Appellate Court did not take into consideration the documents relating to dole settlement and 'kabuliyat' standing in the name of the plaintiff. The learned First Appellate Court was absolutely wrong in deciding the title of the defendants on the basis of the Record of rights. 8. Another limb of argument of Mr. Das is that one Chinibas Mahata @ Srinibas Mahata instituted a suit against the State of West Bengal and the plaintiff and defendants of Title Suit No. 77 of 1997 before the 3rd Court of the learned Civil Judge (Junior Division), Medinipur which was registered as Title Suit No. 74 of 1969. In the said suit, the plaintiff claimed his right, title and interest and possession over the suit property in respect of 22 decimal of land out of 1.02 decimal of land in C.S. Plot No. 260 which was subsequently divided by two batta plots, viz., 260/8 and 260/507. The cause of action to file the said suit by Chinibas Mahata was that entire 1.02 decimal of land in C.S. Plot No. 260 was recorded in the names of the plaintiff and the defendants erroneously. Chinibas Mahata claimed that 22 decimal of land out of the said 1.02 decimal of land ought to have been recorded in his name. Mr. Das draws my attention to page 3 of Exhibit - F series (plaint of Title Suit No. 74 of 1969) wherein Chinibas admitted that the appellant of the instant appeal took settlement of the suit property from Medinipur Zamindari Company Ltd. It is submitted by Mr. Das that in a previously instituted suit title of the appellant was admitted in respect of the suit property by one Chinibus Mahata impleading the appellant and the respondents to the said suit. The respondents no. Das that in a previously instituted suit title of the appellant was admitted in respect of the suit property by one Chinibus Mahata impleading the appellant and the respondents to the said suit. The respondents no. 3 and 4 never challenged the said settlement of Chinnibas Mahata in his plaint by filing separate written statement in respect of the suit property. On the contrary, the appellant and respondents of the present suit filed a joint written statement stating, inter alia, that the appellant alone took the settlement of the suit property from the erstwhile Zamindars. 9. It is pointed out by Mr. Das that during the pendency of the suit the defendants/respondents filed an application under Order VI Rule 17 of the Code of Civil Procedure praying for amendment of written statement by incorporating a case that at the time of taking settlement of the suit property the plaintiff/appellant was a minor and practically father of the parties took settlement of the said land. But in course of cross-examination, defendant no. 1 as D.W. 1 clearly admitted that Ajit Mahata took 'banabostha' (settlement) of the suit property. It is also admitted by him that patta executed by the Zamindari Company and 'kabuliyat' executed by Ajit Mahata in favour of the Zaindari Company were perused by the defendant no. 1/D.W. 1. It is further admitted by D.W. 1 in unequivocal language that the title area of the suit land is 1.02 acres and the excess 22 decimal of land has been recorded in the names of the three brothers. Thus, it is contended by Mr. Das that if at all the defendants had any right they claimed such right in respect of 22 decimal of land out of 1.02 decimal of land in C.S. Plot No. 260. In respect of remaining 80 decimal of land which was taken settlement by the plaintiff/appellant the defendants have no interest. It is further pointed out by the learned Advocate for the appellant that it transpires from the cross-examination of D.W. 1 that at the time of taking settlement of the land execution of 'kabuliyat' payment of tax in respect of the suit property, he had no direct knowledge because at the relevant point of time he was a minor. It is further pointed out by the learned Advocate for the appellant that it transpires from the cross-examination of D.W. 1 that at the time of taking settlement of the land execution of 'kabuliyat' payment of tax in respect of the suit property, he had no direct knowledge because at the relevant point of time he was a minor. Though in the written statement the defendants claimed by way of amendment that the father of the parties took settlement of the suit property, D.W. 1 could not produce any document in respect of any such settlement. Mr. Das also submits that the evidence of other witnesses on behalf of the defendants cannot be relied upon because of the fact that their evidences are no better than hearsay evidence. They heard from the defendants that their father took settlement of the suit property. However, no amount of oral evidence is admissible to contradict the genuineness of documentary evidence. The deed of settlement as well as 'kabuliyat' stands in the name of the appellant and the learned Court of Appeal failed to consider the documents of title standing in the name of the appellant. On the other hand, the learned Judge in First Appellate Court allowed the appeal on the basis of R.S. record of rights holding, inter alia, that the plaintiff and the defendants have equal share in respect of the suit property and accordingly, dismissed the suit filled by the appellant for declaration of title and permanent injunction. 10. It is submitted by Mr. Das relying on a decision of the Division Bench of this Court in Jitendra Nath Chalki & Ors. -Vs.- Bimal Krishna Kunda Chowdhury & Anr., 2006 2 CalHN 687 that the order passed in a proceeding under Section 44 (2a) of the West Bengal Estates Acquisition Act is not conclusive relating to question of title and, whenever any question is raised before the Civil Court relating to question of title over any property or plot of land, the Civil Court has the authority to decide the question and the order of the appellate authority in a proceeding under Section 44(2a) of the WBEA Act cannot be binding on the Civil Court. Civil Court has independent power of making investigation relating to question of title and can decide the title relating to the disputed property. Civil Court has independent power of making investigation relating to question of title and can decide the title relating to the disputed property. The finally published record of rights is presumed to be correct unless contrary is proved and when the entry relating to record of rights is under investigation by Civil Court and the parties have adduced evidence on the point of controversy concerning correctness of entries of record of rights, the entry in record of rights loses its weight when the evidence discloses no foundation for such entry. Coming to the instant case it is submitted that the record of rights in respect of plot no. 260/507 was not correctly done and published because of the fact that the respondents have no title over the suit property and in the absence of title the record of rights is erroneous. 11. On the same principle Mr. Das refers to another decision of this Court in the case of Namita Roy & Ors. -Vs.- Bengal Greenfield Housing Development Company Limited, 2011 1 CalHN 515 (Cal) . He also refers to a Supreme Court decision in the case of Balwant Singh & Anr. - Vs.- Daulat Singh (Dead) By Lrs. & Ors., 1997 7 SCC 137 . It is held in the said report that mutation of a property in revenue record neither creates nor extinguishes title to the property nor has it any presumptive value on title. According to Mr. Das, title is based on the documents and deeds of title and not on the records in R. S. record of rights. 12. It is further submitted by Mr. Das, learned Advocate for the appellant that this Court in Ashraf Hossain Tarafdar -Vs.- State of West Bengal, 2013 4 CalHN 309 (Cal) clearly held that when in a suit the principal issue is question of title, a prayer for declaration that record of rights was wrong does not bring the suit within the mischief of Section 57B of the West Bengal Estates Acquisition Act, 1953. In view of such observation, the Division Bench of this Court was pleased to set aside an order passed by the Tribunal holding, inter alia, that the Civil Court was expressly barred under Section 57B of the West Bengal Estates Acquisition Act from challenging the entries in the finally published record of rights. In view of such observation, the Division Bench of this Court was pleased to set aside an order passed by the Tribunal holding, inter alia, that the Civil Court was expressly barred under Section 57B of the West Bengal Estates Acquisition Act from challenging the entries in the finally published record of rights. Regarding the evidentiary value of record of rights or revenue records the decisions of this Court as well as the Hon'ble Supreme Court are all along consistent and to buttress his argument. Mr. Das further refers to the decision of the Hon'ble Supreme Court in the case of Union of India & Ors. -Vs.- Vasavi Co-operative Housing Society Ltd. & Ors., 2014 AIR(SC) 937 . On the same point Mr. Das also refers to a decision of the Apex Court in Gurunath Manohar Pavaskar & Ors. -Vs.- Nagesh Siddappa Navalgund & Ors., 2008 2 WBLR 296 (SC) and Kartick Chandra Kamila -Vs.- Prafulla Kumar Mali, 2014 3 CalHN 667 (Cal) . 13. It is further argued by the learned Advocate for the appellant that the learned First Appellate Court was wrong in holding that the suit was barred by limitation under Article 115 of the Limitation Act, 1968. In support of his contention Mr. Das refers to the Judgement of this Court in the case of Namita Roy & Ors. (supra). He specifically refers to paragraphs 30, 31 and 32 of the aforesaid report which is absolutely relevant in the instant appeal and quoted hereinbelow:- On the point of limitation "30. On consideration of the decisions cited at the Bar on the point of limitation, this Court holds that the prayer for amendment for inclusion of even a time barred claim cannot be rejected outright, if such application for amendment is otherwise needed for complete adjudication of the dispute involved in the suit, provided, however, any valuable right accrued in favour of the defendants is not destroyed by allowing such amendment. 31. 31. Normally, bar-limitation is a mixed question of law and fact which is required to be decided after taking evidence in the suit but there is exception to this general rule i.e., when on reading the averments made in the pleadings, it can be shown that the relief claimed by the plaintiffs in the suit and/or in the proposed amendment is barred by limitation, such time barred claim cannot be allowed to be brought on record by amendment. Under such circumstances, the Court is not required to decide the said issue regarding bar of limitation after taking evidence as, such decision can be taken from the pleadings in the plaint itself. But if an arguable issue is raised by amendment with regard to bar of limitation then, of course, amendment cannot be refused but after allowing amendment the said arguable point will be made an issue in the suit so that such issue can be decided after recording evidence in the suit. 32. By keeping in mind the aforesaid principles of law, let me now consider as to whether the claim which is sought to be raised by the plaintiffs by way of amendment is at all barred by limitation or not. Here in the instant case the plaintiffs stated that the plaintiffs came to know about the erroneous entries in the record of rights in 1981, but since by such recording in the record of rights, the title of the plaintiffs was not clouded, the plaintiffs' right to sue for the reliefs claimed in the suit did not mature as on 1981 when such erroneous recording in the record of right was discovered by the plaintiffs. The plaintiffs' right to sue for the reliefs claimed in the suit actually matured in 2007 when the plaintiffs' title in the suit property was clouded by disclosing the alleged transfer of the suit property by Sanatan in favour of Badsha Ali by a registered deed of sale dated 7th July, 1944. The instant suit was filed in 2008 within the prescribed period of limitation as per Article 58 of the Limitation Act. Even the relief which the plaintiffs are now seeking to introduce for challenging the validity of the said deed of 1944 by way of amendment in 2009 is also within the prescribed period of limitation as per Article 58 of the Limitation Act. Even the relief which the plaintiffs are now seeking to introduce for challenging the validity of the said deed of 1944 by way of amendment in 2009 is also within the prescribed period of limitation as per Article 58 of the Limitation Act. In fact, if the plaintiffs filed an independent suit seeking the relief which they are now seeking to introduce by way of amendment of the plaint in 2009, such independent suit would not have been barred by limitation as per Article 58 of the Limitation Act in 2009. As such, this Court cannot agree with the learned Trial Judge that the relief which the plaintiffs are now seeking to introduce by way of amendment became barred by limitation as on the date when such amendment was sought for". 14. On the selfsame principle Mr. Das also refers to the case of Raj Kumar & Anr. -Vs.- Official Receiver of the Estate of Chiranji Lal Ram Chand, Ludhiana & Ors., 1996 2 SCC 288 . It is argued by Mr. Das that in the plaint the plaintiff clearly stated that in the year 1997, the defendants tried to obstruct him in his peaceful possession over the suit property only then he came to know about the erroneous entry in the record of rights. Therefore, limitation would start from the date on which the title over the suit property is clouded. Mere knowledge of erroneous record of rights does not confer running of limitation. Limitation under Article 58 explains the period of filing suit to be three years from the date when the right to sue first accrued and not from the date of knowledge. In the instant case, title of the appellant over the suit property was clouded sometimes in 1997 and immediately thereafter he filed the suit. Therefore, the learned Judge in First Appellate Court was wrong in holding that the suit was barred by limitation. On the selfsame point, Mr. Das also refers to the decision of the Hon'ble Supreme Court in Mst. Rukhmabai - Vs.- Lala Laxminarayan & Ors., 1960 AIR(SC) 335 and Bharat Singh & Ors. -Vs.- Mst. Bhagirathi, 1966 AIR(SC) 405 . 15. Mr. On the selfsame point, Mr. Das also refers to the decision of the Hon'ble Supreme Court in Mst. Rukhmabai - Vs.- Lala Laxminarayan & Ors., 1960 AIR(SC) 335 and Bharat Singh & Ors. -Vs.- Mst. Bhagirathi, 1966 AIR(SC) 405 . 15. Mr. R. N. Mahato, learned Advocate for the respondents, on the other hand, has limited his submission absolutely on the issue of the scope of Section 34 of the Specific Relief Act and has raised a pertinent question as to whether under the facts and circumstances of this case a decree for declaration can be passed without the prayer for recovery of possession. 16. In order to substantiate his argument, Mr. Mahato refers to the written statement filed jointly by the plaintiff/appellant and defendants/respondents in Title Suit No. 74 of 1969 filed by Chinibas Mahata (Exhibit - 'F' series). Mr. Mahata particularly refers to the relevant portion of paragraph 12 of the written statement filed by the parties to the instant appeal in the said suit. In paragraph 12 of the written statement the defendants sated that the defendant no. 2, i.e., the appellant herein was the recorded tenant in respect of the suit property on the basis of settlement taken from the erstwhile Zamindars. He developed the suit property and converted it into a cultivable land. After abolition of Zamindari system on promulgation of WBEA Act, the defendant no. 2 began to possess the said land as direct tenant under the State. Apart from the said 80 decimal of the said suit property the defendants in Title Suit No. 74 of 1969 claimed adverse possession in respect of the remaining 22 decimal of land. It was clearly admitted by the defendant no. 2 that during preparation of record of rights especially at the time of attestation and draft publication of the same the defendant no. 2 out of affection recorded the names of the present respondents along with him in the record of rights. It is submitted by Mr. Mahato that the said statement made in the written statement of Title Suit No. 74 of 1969 is an admission made by the plaintiff/appellant herein and the said admission binds the appellant and at present he is estopped from disputing the entries made in the record of rights so far as it relates to the present respondents. 17. It is further submitted by Mr. 17. It is further submitted by Mr. Mahato that entries in finally published record of rights are documents of possession unless rebutted. The appellant cannot rebut such presumption of correctness of record of rights in view of admission made by him in a previously instituted suit in favour of the respondents. Under such circumstances, it was a bounden duty of the appellant to pray for recovery of possession in respect of the shares of the respondents in the suit property. It is further pointed out by Mr. Mahato that correctness of R.S. record of rights in respect of the suit property was admitted by the present appellant in the written statement filed in Title Suit No. 74 of 1969. In support of his contention Mr. Mahato refers to a decision of the Hon'ble Supreme Court in the case of Vinay Krishna -Vs.- Keshav Chandra & Anr., 1993 Supp3 SCC 129 . The above-mentioned decision is on the proviso to Section 42 of the Specific Relief Act, 1877 which is pari meteria with Section 34 of the present Specific Relief Act. It is held in the said decision that when in a suit for declaration of title to the property a specific plea of applicability of bar under the proviso to Section 42 is taken by the defendants on the ground of plaintiff's failure to seek further relief of possession and when it is found that the suit property is not in exclusive possession of the plaintiff the Court cannot pass any declaratory decree. It is further submitted by Mr. Mahato that at the stage of second appeal, the appellant also cannot be given liberty to amend the plaint to incorporate the prayer for recovery of possession of the portion of the suit property which is recorded in the names of the defendants/respondents. Because, the maintainability of the suit was disputed by the respondents in their written statement. In spite of such fact the plaintiff/appellant did not make any application for amendment of plaint seeking relief for recovery of possession. 18. Except on this issue, Mr. Mahato has not made any other submission on substantial question of law involved in the instant appeal. 19. In spite of such fact the plaintiff/appellant did not make any application for amendment of plaint seeking relief for recovery of possession. 18. Except on this issue, Mr. Mahato has not made any other submission on substantial question of law involved in the instant appeal. 19. Having heard submission made by the learned Advocates appearing on behalf of the appellant and the respondents and on perusal of entire materials in Lower Court Record as well as the Judgements delivered by the Trial Court and the First Appellate Court I like to record at the outset that substantial question of law in ground no. 1 is as to whether the learned Judge in the Lower Appellate Court erred substantially in law in declaring the right, title and interest of the plaintiff to the extent of one third share in the suit property only relying upon the entries in the revenue settlement record of rights. It is needless to say that the plaintiff/appellant claimed declaration of title on the basis of his raiyati interest over the suit property on title. Well settled is the law that where a disputed title is involved in a suit, the Civil Court has the authority to deal with the question as to whether the entries in the record of rights were correctly made or not. If the statement contained in paragraph 12 of the written statement of Title Suit No. 74 of 1969 is closely considered it would be found that in the said written statement the appellant claimed his absolute title over the suit property. So far as the preparation of record of rights in respect of the names of the appellant and the respondents are concerned, he admitted that out of affection he allowed the names of the defendants/respondents to be recorded in the record of rights in respect of the suit property and such record was made correctly. 20. Therefore, a question naturally arises as to whether the appellant is entitled to get a declaration in respect of one third share in the suit property on the basis of the record of rights or the document of title shall prevail over the said record of rights. Another important question will naturally arise for consideration as to whether the document of title will prevail or the finally published record of rights. 21. Another important question will naturally arise for consideration as to whether the document of title will prevail or the finally published record of rights. 21. It is needless to say that a document of title is a document of ownership. It is not disputed by the respondents that the appellant is the raiyat on the basis of the deed of settlement executed by Mednipur Zamindari Company Limited and 'kabuliyat' executed by him in favour of the said Zamindari Company. From the decisions referred to above on behalf of the appellant it is crystal clear that the Court can look into the disputed question of title in a suit for declaration based on the document of title. When title stands in favour of the appellant, in my considered view the appellant is entitled to get declaration in respect of his title. Question of applicability of the proviso to Section 34 of the Specific Relief Act will come into play when there remains a disputed question of possession on the basis of title. A titleholder permits the statutory authority to record a particular piece of property in the name of himself and his two brothers the statutory authority acted on such representation. Does such recording create a title? In my humble consideration the reply will be in the negative. 22. At the same time, I am not unmindful to note that in view of the finally published record of rights, Jurisdiction of this Court is specifically barred under Section 57B of the WBEA Act and 51C of the WBLR Act. So, this Court cannot pass any decree declaring the finally published record of rights erroneously. 23. In view of the above discussion, substantial questions of law involved in the appeal is answered in affirmative and in favour of the appellant. The Judgement and Decree passed by the First Appellate Court in Title Appeal No. 130 of 2007 on 25th February, 2008 is set aside. Right and title over 80 decimal of land in Plot No. 260/507 of Mouza - Dengasole, P.S. - Salboni is declared in favour of the appellant. 24. The instant appeal is, thus, disposed of on contest, however, without cost.