Research › Search › Judgment

Calcutta High Court · body

2021 DIGILAW 433 (CAL)

Shankar Dhibar v. Bangshi Dhibar

2021-10-04

ARINDAM SINHA, SUGATO MAJUMDAR

body2021
JUDGMENT : Sugato Majumdar, J. 1. Mr. Bhattacharya, learned advocate appears on behalf of appellants and submits, though the appeal was heard in relation to its admission, on 30th September, 2021, thereafter he received information that appellant no.5 and respondent no. 1 died respectively on 23rd August, 2021 and 30th October, 2020. He submits further, he has not been able to locate any authority that bars a Court from deciding on claims of title in absence of title documents. We have heard this submission of Mr. Bhattacharya. We are of considered opinion that fate of admission hearing of the instant second appeal would in no way impair or prejudice the interests of the parties or persons claiming under them, since we are of the view no question of law is involved in the appeal. We give below reasons for our view. 2. The instant second appeal is preferred against the appellate judgment and decree dated 12.03.2015 passed in Title Appeal No. 119of 2013 by the Civil Judge (Senior Division), Additional Court at Purulia, whereby, the Learned First Appellate Court allowed the appeal filed by the respondents/plaintiffs and passed decree of declaration of title and possession of the respondents/plaintiffs in respect of the suit property along with decree of permanent injunction against the present appellants/defendants. 3. The respondents/plaintiffs instituted Title Suit No. 2 of 2004 praying for a decree of declaration of title in respect of the suit property; confirmation of possession of the same as well as decree for permanent injunction against the appellants/defendants, restraining them from disturbing the peaceful possession of the respondents/plaintiffs. The learned Trial Court dismissed the suit on merit. The respondents/plaintiffs preferred first appeal. The First Appellate Court remanded the suit to the learned Trial Court with direction to record evidence on acquisition of the suit property by the respondents/plaintiffs and to decide the suit afresh. 4. The learned Trial Court again dismissed the suit on merit against which the respondents/plaintiffs again preferred an appeal. 5. The Appellate Court set aside the impugned judgment and decree of the learned Trial Court and passed decree of declaration that the respondents/plaintiffs have title and possession of the suit property along with decree of permanent injunction against the appellants/defendants restraining them from disturbing the peaceful possession of the respondents/plaintiffs without due process of law. The instant second appeal is preferred against the said appellate judgment and decree. 6. The instant second appeal is preferred against the said appellate judgment and decree. 6. The respondents/plaintiffs case, as appears from the judgments of both the courts, is that they are sons of one Banamali Dhibar and are in possession of the suit property by rearing and catching fish and paying rent. R.S. Plot No. 9988 under R.S. Khatian No. 9942, being suit properties,also belongs to the respondents/plaintiffs. The respondents/plaintiffs Nos. 3,4 and 5 are running a business of coal depot in a suit property. It was alleged by the respondents/plaintiffs that the appellants/defendants being sons of one Tarapada Dhibar threatened the respondents/plaintiffs with forcible dispossession from the suit property, casting clouds on their title and endangering their possession. 7. While contesting the suit, the appellants/defendants, in the written statement, denied right title and interest of the respondents/plaintiffs in respect of the suit property. Possession of the respondents/plaintiffs was also denied. Appellants/defendants set up their rival title in respect of the suit property and averred, along with others, that entries made in Record of rights in the name of Banamali Dhibar, from whom the respondents/plaintiffs derived title, is erroneous. 8. Various title deeds were produced by both the parties at trial to substantiate their respective cases. After remand the respondents/plaintiffs adduced additional documentary evidences which were marked as Exhibit Nos. 4 to 7. 9. The learned Trial Court, after remand, dismissed the suit on merit. It was in the observation of the learned Trial Court that Exhibit No. 5 is record of rights which is a mere document of possession and not that of title. In the opinion of the learned Trial Court, the other documentary evidences failed to establish title of the respondents/plaintiffs in respect of the suit property. 10. The learned First Appellate Court examined and appreciated all material evidences adduced before the learned Trial Court and observed that none of the documents filed by the respondents/plaintiffs establish their title to the suit property.In the observation of the learned First Appellate Court: ‘‘None of the documents filed by either of the parties with exception of the Exhibit No. 5 fits the description of the suit property mentioned in the plaint.’’ At the same time it was observed that Exhibit No. 5 being record of rights bears name of the father of the respondents/plaintiffs recorded as ‘Dokholkar Basatproja’. The First Appellate Court also considered oral testimony of D.W.1, that respondents/plaintiffs nos. 3 to 5 are running a business of coal depot on the suit property for last 12 to 13 years. The First Appellate Court concluded that the father of the respondents/plaintiffs was a raiyat in respect of the suit property,that the respondents/plaintiffs are in possession of the same and nothing is there to suggest that the possession is wrongful. On the contrary, the appellants/defendants failed to prove any better title than the respondents/plaintiffs in suit property. Rebuttable presumption of possession, which was thereon in favour of the respondents/plaintiffs, was not rebutted by the appellants/defendants. On the strength of Exhibit No. 5 being record of rights as well as oral testimony of D.W. 1 a presumption of title and possession of the respondents/plaintiffs in respect of the suit property under Section 110 of Indian Evidence Act was drawn and it was concluded that the respondents/plaintiffs proved their possession in suit property and in absence of better title of the appellants/defendants said Court presumed the title of the respondents/plaintiffs in respect of the suit property. Accordingly the First Appellate Court passed decree of declaration and permanent injunction in favour of the respondents/plaintiffs. 11. On being aggrieved by the appellate decree, the appellants/defendants came before us praying for admission of the instant appeal. 12. Mr. Bhattacharya submitted that the learned First Appellate Court erred in law in relying upon the record of rights and drawing presumption of title and possession of the respondents/plaintiffs under Section 110 of the Indian Evidence Act in respect of the suit property.It is vehemently argued by Mr. Bhattacharya that entry of names in record of rights neither confers title nor is evidence of the same. Mr. Bhattacharya relied upon: S.J. Patelvs. V.J. Patel [ (1996)6 SCC 433 ] State of West Bengal vs. Birendra Sarkar [ (2004) 1 CHN 615 (Para.11)] Niranjan Chatterjeevs. State of West Bengal [(2007) III CHN 683 (Para.30)] We have lent our patient ears to Mr. Bhattacharya. 13. Focus of argument of Mr. Bhattacharya is not so much on propriety of the First Appellate Court in drawing presumption under section 110 of Indian Evidence Act as much as on reliance upon record of rights in drawing such presumption. Bhattacharya. 13. Focus of argument of Mr. Bhattacharya is not so much on propriety of the First Appellate Court in drawing presumption under section 110 of Indian Evidence Act as much as on reliance upon record of rights in drawing such presumption. We agree with the proposition of law argued by him that entries made in record of rights is not evidence of title of any person. It is also trite law that entries are only one of the modes of proof of the enjoyment of the property, as observed in S.J.Patel’s case (supra).At the same time inference of possession can be drawn on the basis of entries made in the Record of rights. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565 Supreme Court of India observed that a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act. Explaining scope of section 110 the Indian Evidence Act, Supreme Court of India elaborated in State of A.P. v. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319 “Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved.’’ 14. Since we are hearing admission hearing of the instant second appeal we should refrain from making any comment on merit. Ratio of Star Bone Mill and Fertiliser Company’s case (supra) is relevant only to consider the issue that on the basis of record of rights, a valid presumption under section 110 is permissible and can be drawn. The learned First Appellate Court presumed possession of the suit property in favour of the respondents/plaintiffs on the basis of Exhibit No. 5, namely, Record of rights coupled with oral testimony of D.W. 1 who admitted that co- respondents/co-plaintiffs are running a coal depot on a part of the suit property for 12-13 years. Therefore, drawing a presumption itself under section 110 of the Indian Evidence Act on the basis of record of rights is neither erroneous nor perverse nor unlawful paving the way for framing a substantial question of law. Therefore, drawing a presumption itself under section 110 of the Indian Evidence Act on the basis of record of rights is neither erroneous nor perverse nor unlawful paving the way for framing a substantial question of law. It is trite law, as held by the Supreme Court of India in Corpn. of the City of Bangalore v. M. Papaiah, [ (1989) 3 SCC 612 ], “It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law.’’ 15. The gamut of argument, revolving round record of rights, therefore, failed in favour of framing any substantial question of law warranting admission of the instant appeal. 16. Mr. Bhattacharya also argued that declaration of title in favour of the respondents/plaintiffs made would be in conflict by title holder in respect of the suit property. Possession is many parts of title. Law recognizes acquisition of title by adverse possession. Respondents/plaintiffs admittedly are in possession since long. They did not claim such possession as under someone holding title. 17. On perusal of the judgments of the two courts below and in particular the judgment and decree of the First Appellate Court we are of considered opinion that no substantial questions of law is involved in this instant second appeal. Therefore, we are not inclined to admit appeal and the same stands dismissed.