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2021 DIGILAW 139 (TRI)

Naresh Chandra Deb v. Biru Chandra Saha

2021-08-26

S.TALAPATRA

body2021
JUDGMENT This appeal by the plaintiff under Section 100 of the CPC arises from the judgment dated 05.02.2021 delivered in Title Appeal No.39 of 2018 by the District Judge, West Tripura, Agartala. Having noted that the plaintiffs have proved their title over the suit land, but they have failed to prove any cause of action to institute the suit, the Civil Judge who tried the suit denied to give any consequential relief as sought. Reliefs sought by the plaintiffs are as follows: (a) a decree declaring that the Plaintiffs have right, title and interest over the suit land; (b) a decree for recovery of possession of the suit land by evicting the Defendants and handing over the vacant possession to the Plaintiffs, and (c) a decree of perpetual injunction restraining the Defendants and their men and agent from entering into the suit land. 02. The suit land is situated in mouja Indranagar under Sadar Sub-division, West Tripura District appertaining to Khatians No.3351 and 10720, CS Plots No.PB-4079 and 42/P corresponding to R.S (Hal) Plot No.124 and 124/20696 and measuring 2.48 acre. The suit land has been more elaborately described in the schedule appended to the plaint. The judgment dated 24.09.2018 passed in the Title Suit 73 of 2014 was challenged by the plaintiffs under Section 96 of the CPC in the court of the District Judge, West Tripura, Agartala being Title Appeal 39 of 2019. By the judgment dated 05.02.2021, as challenged in this appeal, the said first appeal has been dismissed. The District Judge has having reappraised the evidence observed that the plaintiffs have failed to clarify how they have got the suit land from their father whether it was by inheritance or by any sort of transfer and if it was a case of transfer what quantum of land was transferred to them by their father. They are not even disclosing when their father died in order to establish their claim over the suit land by way of inheritance. Apart from the deficiency in the pleading, the plaintiffs have ignored to place the evidence in these regards. They are not even disclosing when their father died in order to establish their claim over the suit land by way of inheritance. Apart from the deficiency in the pleading, the plaintiffs have ignored to place the evidence in these regards. In contrast to the observation made by the Civil Judge that the record of rights can be made the basis for declaring title, a decision of the Gauhati High Court (at Agartala Bench) titled as Naresh Chandra Deb and Others vs. Kamini Mohan Deb reported in AIR 1979 NOC 169 has been relied on. 03. The first appellate court has observed that: “….as there are apparent anamoly in the revisional and present khatians in recording of quantum of suit land in related RS Plots. Thus, right, title, interest of Plaintiffs also cannot be declared solely basing on the entries available in the Khatians as this stands.” 04. The first appellate court has further observed that the plaintiffs have failed to prove their right, title and interest in the suit land and therefore, they are not entitled to get the reliefs as prayed for. For a different set of reasons, the judgment by the Civil Judge has been affirmed but finding of the title in favour of the plaintiffs has been impliedly set aside. Briefly stated the petitioner’s case is that the predecessor of the plaintiffs namely Pramod Chandra Deb died long ago. After his death, the plaintiffs became the owner and the possessor of the suit land jointly being legal heirs of Pramod Chandra Deb. It is the statement of the plaintiffs that in the month of June, 2008, the plaintiffs permitted the defendants to cultivate the suit land for a period of three years with condition that half of the harvest be shared with the plaintiffs yearly. On 15.08.2015, the plaintiffs had requested the defendants to vacate the land, but they had denied to vacate the land and hence, the suit has been instituted for recovery of the suit land. 05. The defendants have appeared and filed the written statement contending, inter alia, that the father of the defendants by dint of an ‘unregistered deed’ dated 29.03.1959 purchased the suit land from the original owner namely Makindra Deb Marak @ Makindra Garo. 05. The defendants have appeared and filed the written statement contending, inter alia, that the father of the defendants by dint of an ‘unregistered deed’ dated 29.03.1959 purchased the suit land from the original owner namely Makindra Deb Marak @ Makindra Garo. Simultaneous with the said purchase, their father namely Bidhu Bhushan Saha took possession of the suit land but due to shortage of money the defendants failed to purchase the suit land along with other lands, but they continued in possession on the suit land. According to the defendants on 30.03.1960, the original owner tried to evict their father from the suit land but he had failed and thereafter the predecessor of the defendants and the defendants have been possessing the suit land adversely. The defendants have raised a serious objection regarding maintainability of the suit inasmuch as there is no cause of action for institution of the suit. The trial judge having perused the pleadings on record framed the issues which are as follows: i. Is the suit maintainable in its present form and nature? ii. Have the plaintiffs any cause of action to institute the instant suit? iii. Have the plaintiff’s right, title and interest over the suit land? iv. Is the story of possession of the plaintiffs over the suit land and there dispossession therefrom true? If so, are the plaintiffs entitled to get possession of the suit land? v. Are the plaintiffs entitled to get an order of perpetual injunction as prayed for? vi. Are the plaintiffs entitled to a decree, as prayed for? vii. What other relief/reliefs the plaintiffs are entitled to? 06. The plaintiffs in order to prove their case examined witness (PW-1) and admitted nine documents including a few sale-deeds Exbt-3A, Exbt.6A to 6D. That apart, PW-1 admitted in the evidence the partition deed, Exbt.7A to 7E, several revenue receipts Exbt.8A to 8B and the settlement map [Exbt.9]. The defendants examined four witnesses including the defendant No.2 as DW-2. On appreciation of the evidence, the trial judge had declared the title, as stated, but for absence, of cause of action the suit was dismissed. The Civil Judge has categorically observed inter alia that if the defendants are in possession of the suit land since 1959 as claimed by them, their names would have been recorded in the survey settlement records. But the defendants could not produce any such document. The Civil Judge has categorically observed inter alia that if the defendants are in possession of the suit land since 1959 as claimed by them, their names would have been recorded in the survey settlement records. But the defendants could not produce any such document. The defendants have, however produced the mutation record of mouja Indranagar. In the said record at serial No.337 to 340 the name of the predecessor of the defendants is recorded with the predecessor of the plaintiffs. In support of the plea of adverse possession, no documentary evidence could be introduced by the defendants in the proceeding. The civil Judge has disbelieved the plea of adverse possession. The first appellate court while concurring with the said opinion has observed as follows: “….the Defendants failed to prove their claim of adverse possession. According to their written statement, on 30.03.1960 said Pramod Chandra Deb and his vendor Makindra Deb Marak attempted to dispossess the predecessor of Defendants from the suit land but could not be successful due to resistance from them and therefore, adverse possession of predecessor of Defendants commenced from 30.03.1960. Actually, the predecessor of plaintiffs did not purchase all the land parcels from said Makindra Deb Marak. Anyway, to prove adverse possession, Defendant No.2 Niru Chandra Deb examined himself as DW1 who during the year 2017 has stated that his age to be 43 years which means he was even born at the time of alleged commencement of adverse possession. DW2 Narayan Banik has stated that his age to be 57 years in the year 2018. DW3 Tukan Nama has also stated that his age to be 42 years in the year 2018. DW4 Bachhu Miah has stated that his age to be 58 years in the year 2018 and DW5 Hiru Miah has also stated that his age to be 46 years in the year 2018 which means either they just took birth in the year 1960 or was even not born at the time of alleged date of commencement of adverse possession. During cadastral survey operation or during revisional survey operation in the relevant comment columns of the Khatians, the possession of present Defendants or their predecessor was never shown as against the suit plot. There is no convincing evidence that the Defendants or their predecessor were possessing this suit land adversely since 1960. During cadastral survey operation or during revisional survey operation in the relevant comment columns of the Khatians, the possession of present Defendants or their predecessor was never shown as against the suit plot. There is no convincing evidence that the Defendants or their predecessor were possessing this suit land adversely since 1960. This is a suit for recovery of possession and when the Defendants raising the claim of adverse possession, fails to prove the same and simultaneously the plaintiffs prove their title over the suit property properly, the date of dispossession becomes insignificant.” 07. Finally, in the memorandum of appeal a few substantial questions of law have been suggested immediately below the ground (viii). Those questions are: (a) Whether a First Appellate Court, without any cross objection/independent appeal and/or argument from the side of the respondent, can open a chapter in an uncalled for manner in gross violation of its jurisdiction and provision of law? (b) Whether after discarding the finding of a trial court on the issue of maintainability, wherein the right, title and interest of a party have been found by the said court, a first appellate court can dismiss an appeal by making a third case beyond the subject-matter of an appeal? (c) Whether a First Appellate Court is under legal obligation to exercise its jurisdiction within the parameters of the Code of Civil Procedure, 1908 while deciding a first appeal? (d) Any other substantial questions of law, as this Hon’ble court deems fit and proper, may kindly be made. 08. All these questions may fit in a single substantive question of law whether the appellate court has any authority to interfere with an incorrect finding without being specifically challenged by the affected person. This plea has been raised and advanced as the plaintiffs did not challenge the finding on title as returned by the Civil Judge. The first appellate court has reversed the finding of declaration of title contending that on the basis of entry in the khatian, title cannot be declared. According to the first appellate court, that was such irregularity which required interference. As it appears to this court that the first appellate court has exercised the power as provided under Order XLI Rule 33 of the CPC without mentioning the same. According to the first appellate court, that was such irregularity which required interference. As it appears to this court that the first appellate court has exercised the power as provided under Order XLI Rule 33 of the CPC without mentioning the same. Rule 33 of Order XLI of the CPC provides that 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 from the part of the decree only 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, even though an appeal may not have been filed against such decrees. 09. This court is of the view that while returning the finding on title of the plaintiffs over the suit land, the first appellate court had jurisdiction to exercise that power in view of the power as provided by Order XLI Rule 33 of the CPC. With leave of the court, the appellant has placed another set of substantial questions of law which are as follows: (a) Whether the 4(four) Sale Deeds exhibited as Exhibit-3A to Exhibit-6A which were all executed more than 30(thirty) years back deserved the benefit of Section 90 of the Evidence Act at the time of appreciation? (b) Whether the entry made in a Khatian can be taken into consideration for deciding the title of any person ignoring the Title Deeds? (c) Whether the claim of adverse possession itself shows the admission of title of the person against whom it is made? (d) Whether after failure of a person to prove adverse possession on any land warrants the order of eviction against that person and in favour of the true owner? 10. Mr. S. M. Chakraborty, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the appellant has submitted that the finding of the first appellate court in respect of title is grossly erroneous. 10. Mr. S. M. Chakraborty, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the appellant has submitted that the finding of the first appellate court in respect of title is grossly erroneous. The first appellate court did not hesitate to record that by the sale-deed dated 12.11.1959 [Exbt.3A-3C] Makindra Garo sold out 5 kanis of land to Pramod Chandra Deb, the predecessor in interest of the plaintiffs. By the sale-deeds dated 29.11.1960 [Exbt.4A-4C] one Ramindra Marak and three others [legal heirs of Makindra Marak] sold out 14 kanis 11 gandas 2 karas and 2 krantas of land again to Pramod Chandra Deb. By the sale-deed dated 29.11.1960 [Exbt.5A-5C] the land to the extent of 1 drone 2 kanis 6 gandas and 3 karas was purchased from Ramindra Marak and three others. By the sale-deed dated 04.03.1966 [Exbt.6A to 6D] the land to the extent of 7 kanis was purchased from one Ajoymani Marak. It has appeared from the finally published Khatian No.3868 [Exbt.F & Exbt.J] that the suit land pertaining to CS Plot No.42 measuring 3.25 acre was recorded in the name of the plaintiffs during the first Survey and Settlement operation. The defendants have introduced Khatian No.2 corresponding to the old Khatian No.2664 [Exbt.G & Exbt.H] which stood in the name of Pramod Chandra Deb. But those are not related to the suit plots. Another finally published Khatian No.3867 has been proved being marked Exbt.I, which stood in the name of the plaintiff, Dulal Chandra Deb. But the same is also not related to CS Plot No.42. Therefore, there cannot be any doubt that actually the said suit plot being CS Plot No.42 would consist of only 3.25 acre of land and not beyond that. The said plot No.42 was converted, according to the plaint, to R.S. Plots No.124 and 124/20696 comprising the total area of 2.48 acre. During the revisional Survey and Settlement operation, Khatian No.3351 [Exbt.2] standing in the name of both the plaintiffs was opened and finally published. From that khatian, it transpired that the said CS Plot No.42 was divided into two RS Plots viz. Plot No.123 (measuring 2.77 acre) and Plot No.124 (measuring 2.48 acre) comprising total area measuring 5.25 acre which is in excess than the original areas of land i.e., 3.25 acre against CS Plot No.42. From that khatian, it transpired that the said CS Plot No.42 was divided into two RS Plots viz. Plot No.123 (measuring 2.77 acre) and Plot No.124 (measuring 2.48 acre) comprising total area measuring 5.25 acre which is in excess than the original areas of land i.e., 3.25 acre against CS Plot No.42. In the revisional survey khatian, there is no indication that some land from the other plots were added with the same while creating the said two RS plots. There is no explanation in the plaint as well as to the said additional quantum during the said revisional survey settlement operation. Thereafter, it has been succinctly stated by the first appellate court that the quantum during the revisional survey settlement operation in the said Khatian No.3351, share of both the plaintiffs were shown as 50% to each whereas in the CS Khatian No.3868[Exbt.J] their shares were shown as 13.3%. The computer generated Khatian No.3351 [Exbt.1] shows that an area of the land measuring 2.77 acre has been shown against CS Plot No.42(P) corresponding to the RS Plot No.123 measuring 2.48, acre which has been brought from CS Plot No.42 corresponding to RS Plot No.124 which has been created for an area of 2.48 acre. In the comment column, in the said Khatian, it was mentioned that some transfers took place by the deeds but any such deed was not proved by the plaintiffs in the trial. Again, some mutations were made subsequently. Khatian No.10720 was opened with respect to the suit C.S. Plot No.42, corresponding to R.S. Plot No.124/20696 for an area of 1.48 acre and the same was recorded in the name of the plaintiff Naresh Chandra Deb. Similarly, another khatian was opened bearing No.3351 with reference to the CS Plot No.42(P) corresponding to R.S. Plot No.124 for an area of 01 acre which was recorded in the name of the plaintiff namely Dulal Chandra Deb. But surprisingly, the said two khatians were also not proved in the evidence by the plaintiffs, though they gave their description of the suit land in the schedule of the plaint based on those two recent khatians. It appears that the CS Plot No.42 corresponding to R.S. Plot No.124 has been sub-divided into two R.S. Plots for an area of 1.48 acre + 1 acre. Thus, the total land stands at 2.48 acre. It appears that the CS Plot No.42 corresponding to R.S. Plot No.124 has been sub-divided into two R.S. Plots for an area of 1.48 acre + 1 acre. Thus, the total land stands at 2.48 acre. There is no explanation from the plaintiffs in respect of the excess land added during the revisional survey settlement operation with reference to CS Plot No.42 as discussed above. 11. The first appellant court has further observed that the plaintiffs made an attempt to prove one partition deed executed between themselves but the same was not properly proved complying Section 64 of the Evidence Act. The defendants had in their written statement challenged the entries of khatian standing in the name of the father of the plaintiffs namely Pramod Chandra Deb stating that an amount of excess land was recorded in their khatian. By dint of the four purchase deeds, as narrated before, Pramod Chandra Deb purchased total 18 acre of land, but as per khatian [Exbt.G & Exbt.H] during the first survey settlement operation the land amounting to 9.23 acre was recorded in his name vide Exbt.I and Exbt.J (total area of land measuring 10.15 acre). If the aggregate of the land pertaining to those khatians are taken into consideration, then total area as recorded in the name of the father of the plaintiffs would come to 19.38 acres (9.23 + 10.15). The first appellate court has observed that it is not clear how the plaintiffs got the said land whether by inheritance or through transfer from their father or by some other menas. From the side of the defendants two certified copies of the gift deeds dated 25.01.1967 as executed by Pramod Chandra Deb in favour of the plaintiffs have been sought to be taken into evidence, but the same were not proved in accordance with law and moreover there was no pleading of the defendants in that regard. As stated before, CS Plot No.42 was comprised of an area of 3.25 acres and during the revisional survey and settlement operation, such area was extended to a greater extent by the Settlement Authority without any explanation. It seems to be irregular recording of entries in the khatian relating to the suit plots. Therefore, reliance cannot be made on the entries of the related khatian for drawing any presumption of correctness. 12. It seems to be irregular recording of entries in the khatian relating to the suit plots. Therefore, reliance cannot be made on the entries of the related khatian for drawing any presumption of correctness. 12. The civil Judge has observed that the defendants have failed to prove their claim of adverse possession. According to their written statement, on 30.03.1960, Pramod Chandra Deb and his vendor namely Makindra Deb Marak attempted to dispossess the predecessor of the defendants from the suit land but could not be successful due to resistance as offered by the predecessor of the defendants. Thus, the defendants have claimed that their possession commenced adversely from 30.03.1960. The defendant No.2, Niru Chandra Deb has examined himself as DW1. In the year 2017 the defendant No.2 has been, as stated, aged about 43 years. That implies that at the time of alleged commencement of adverse possession the defendant No.1 was not even born. Similarly, DW-2 Narayan Banik has contended that his age was 57 years in the year 2018. DW-3 has also stated that his age was 42 years in the year, 2018. DW-4, Bachhu Miah has stated that his age was 58 years in the year 2018, whereas DW5, Hiru Miah has stated that his age was 46 years in the year 2018. Hence, it transpires that in the year 1960 they were either not born at the time of alleged date of commencement of adverse possession or in the extreme tender age. During the cadastral survey operation or during the revisional survey operation, from the comment recorded in the column of the Khatians, the possession of present Defendants or their predecessor cannot be gathered against the suit plot. There is no convincing evidence that the defendants or their predecessor were possessing this suit land adversely since 1960. Thus, by way of prescription, no title can be claimed over the suit land. 13. The first appellate court has very reluctantly observed that initially the plaintiffs allowed the defendants to reclaim and cultivate the suit land for three years and thereafter for another three years. Before expiry of the second phase of permission for three years, the plaintiffs asked the defendants to vacate the suit land on 15.08.2013. The first appellate court has observed that the plaintiffs have not clarified how they got the suit land from their father whether by inheritance or by any sort of transfer. Before expiry of the second phase of permission for three years, the plaintiffs asked the defendants to vacate the suit land on 15.08.2013. The first appellate court has observed that the plaintiffs have not clarified how they got the suit land from their father whether by inheritance or by any sort of transfer. But the first appellate court has succinctly observed that the suit CS plots were recorded in favour of the plaintiffs. According to the first appellate court, those entries made in the khatian after the revisional survey and settlement operation has created anomalous situation. Thus, the declaration of title by the Civil Judge based on those khatians is held to be erroneous and accordingly the suit has been dismissed by the first appellate court. 14. Mr. Chakraborty, learned senior counsel has emphatically contended that the four sale-deeds Exbt.3A to Exbt.6A were executed more than thirty years ago and as such there is no irregularity about admission of those deeds. For purpose of reference, Section-90 of the Evidence Act is reproduced hereunder: “90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.” The documents came from the custody of the plaintiffs. 15. Mr. Chakraborty, learned senior counsel has raised this objection as the first appellate court had observed that amongst those documents, four deeds and one partition deed were taken into evidence subject to objection by the defendants as Section-67 of the Evidence Act was not complied with. Mr. Chakraborty’s contention has been answered by the first appellate court that out of the said five deeds, four sale-deeds are more than 30 years old and therefore, the same can be taken into evidence but one partition deed which was executed in the year 2014 has not been proved in accordance with law. The partition deed No.1-6909 dated 25.09.2014 [Exbt.7A-Exbt.7E] has been claimed to be the instrument of demarcation of the land for the individual plaintiffs. The partition deed No.1-6909 dated 25.09.2014 [Exbt.7A-Exbt.7E] has been claimed to be the instrument of demarcation of the land for the individual plaintiffs. For that purpose, para-3 of the plaint is extracted hereunder: “That, the Plaintiffs have been possessing the suit land as Chirastayee Rayati initially as joint property. Thereafter on 25/09/2014 the Plaintiffs by dint of Registered Partition Deed being No.1-6909 dated 25/09/2014 have got Partition of their joint property and after Partition of the suit land the Plaintiffs applied for mutation in the concerning Tahasil and after spot verification and considering the relevant documents the Plaintiffs have got mutation and record of right has been created separately in favour of their name in respect of the suit land along with others land.” 16. It is also evident that in the second phase, according to the plaintiffs, the defendants were given three years time to possess. But before expiry of that period, the plaintiffs wanted to take back the possession of the suit land. The civil Judge has observed that the said incident cannot give any cause of action in favour of the plaintiffs. Now this court encounters whether the suggested questions as noted above are at all substantial questions of law or not. As discussed above, the suggested questions relating to the presumption as regards the thirty years old documents has been answered by the first appellate court that his finding does not suffer from any infirmity. 17. The next question which has been suggested as the substantial question of law that the entry made in the khatian whether can be taken into consideration for declaring the title of any person ignoring the title deed. The law in this regard is well settled. The entries in the revenue records cannot be based for declaring the title. Even though, in the khatian (the record of rights) names of the plaintiffs are recorded as possessors but they have themselves stated that they are not in possession. In the case in hand, presumption of correctness in respect of possession to some extent can be drawn. The first appellate court is absolutely correct when it has observed that the partition deed has not been admitted following the process as laid down by Section-67 of Indian Evidence Act. 18. In the case in hand, presumption of correctness in respect of possession to some extent can be drawn. The first appellate court is absolutely correct when it has observed that the partition deed has not been admitted following the process as laid down by Section-67 of Indian Evidence Act. 18. The defendants raised such objection at the time of admitting the said document, but the Civil Judge did not give any explanation why he had admitted the said partition deed [Exbt.7A-Exbt.7E] by waving the said objection. The partition deed is not a public document, it is a private document. Thus, the said document shall be admitted through the process as laid down in Section-67 of the Evidence Act. But in this case, the process has not been followed. Moreover, it has been shown that as regards the quantum of land there is huge anomaly and that has been explained neither by the plaintiffs nor by the civil judge. Thus, the first appellate court has rightly observed that on the basis of the document meaning the Khatian No.3351 of mouja Indranagar [Exbt.1], the title cannot be declared. This court affirms this finding. 19. The other substantial question of law as suggested is whether the claim of adverse possession by itself is the admission of the title of the person against whom it has been claimed. Such question betrays the basic requirement of discharge of burden in respect of reliefs claimed. Section-101 of the Indian Evidence Act provides unambiguously that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section-102 of the Evidence Act lays down that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 20. It is obviously the plaintiffs would suffer if they cannot proved their title to the satisfaction of the court. The illustrations in this regard are also indicative. The defendants have claimed the adverse possession. That statement relating to adverse possession will not be enough for the plaintiffs to hold that they are the true owner independently of the suit land. It is obviously the plaintiffs would suffer if they cannot proved their title to the satisfaction of the court. The illustrations in this regard are also indicative. The defendants have claimed the adverse possession. That statement relating to adverse possession will not be enough for the plaintiffs to hold that they are the true owner independently of the suit land. As the title is required to be proved by basic documents of transfer, executed by the competent persons. Therefore, there is no substance in the suggested question. The last suggested question is whether after failure of a person to prove adverse possession on any land, whether the decree of recovery for purpose of eviction be granted in favour of the true owner. This is no more a debatable question. If the plaintiffs have established that they are the true owner of the land and the defendants have failed to prove their claim of adverse possession, then the civil court is bound to issue a decree of recovery of possession by evicting the defendants from the suit land. But in this case, the plaintiffs have failed to prove them as the true owner of the land. In the plaint, the plaintiffs have claimed that they have inherited the suit property for their predecessor, Pramod Chandra Deb. The land they inherited measures 8 acre according to the plaint, but the suit land is only 2.48 acre. There is no explanation what happened to the remaining land. The first appellate court has given a brief detail of anomalies. Such anomalies have unleashed serious impediment in respect of determining the ownership of the suit land. That apart, the partition deed which has created specific right against the joint property as inherited by the plaintiffs has not been admitted in the evidence following the process of law. 21. The first appellate court has correctly held that the declaration of title cannot be sustained. Thus, in the considered opinion of this court, this appeal is bereft of merit and accordingly, the same is dismissed. Draw the decree accordingly.