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2000 Supreme(Cal) 350
High Court Of Calcutta
Gorachand De
PANCHUBALA DASSI - Appellant
Versus
MONMOTHO NATH MONDAL - Respondent
S. A. 263 Of 1978
Decided On : 07/18/2000
FAIZUL ISLAM, Sunil Kumar Banerjee
The presumption of correctness attached to the Record of Rights can be rebutted by cogent evidence, but the plaintiff failed to do so in this case.
Headnote:
LAND DISPUTE - PRESUMPTION OF CORRECTNESS OF RECORD OF RIGHTS - REBUTTAL OF PRESUMPTION - ADVERSE POSSESSION - SALE DEED - ADMISSION OF TITLE - EVIDENCE.
Fact of the Case:
Plaintiff filed a title suit for declaration of her title and recovery of possession of three plots of land. The plaintiff's case was that her father was the original owner and after his death, she inherited the property. She sold the property to one Chintamoni Hajra in 1941 and repurchased it from him in 1958. The defendants claimed ownership of the suit property and denied the plaintiff's title.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiff, but the first appellate court reversed the decision and dismissed the suit. The plaintiff filed a second appeal.
Issues: 1. Whether the plaintiff has proved her title to the suit property? 2. Whether the presumption of correctness attached to the Record of Rights has been rebutted? 3. Whether the plaintiff has acquired title to the suit property by adverse possession?
Ratio Decidendi: 1. The plaintiff failed to prove her title to the suit property. The C.S. Record of Rights did not reflect the real state of affairs, and the subsequent L.R. Record of rights was not finally published and was not produced. 2. The presumption of correctness attached to the R.S. Record of rights was not rebutted by the plaintiff. The alleged sale deed in favor of the plaintiff's father was not filed, and no evidence was adduced to support the claim that he had title to the disputed plots. 3. The plaintiff did not make out a case for acquisition of title by adverse possession. The plaint case showed that she sold the property in 1941 and repurchased it in 1958, and there was no evidence of continuous possession for more than 12 years.
Final Decision: The second appeal was dismissed, and the judgment and decree of the first appellate court were confirmed.
( 1 ) -THIS second appeal is directed against the judgment and decree dated 10. 6. 77 passed by the learned District Judge, Burdwan in T. A. No. 123/63. By the said judgment the learned District Judge set aside the judgment of the trial Court in Title Suit No. 135 of 1962, renumbered on transfer as Title Suit No. 395 of 1960.
( 2 ) THE plaintiff, who is the present appellant, instituted a Title suit praying for a declaration of her title and recovery of possession with other reliefs in respect of three plots of land having a total area of 2. 63 Acres in Khatian No. 119 in Mouza Chhoto Belun, J. L. No. 107 of Police Station and District Burdwan.
( 3 ) THE plaintiff's case is that her father Sarat Majhi was the original owner in respect of the suit properties and his possession was duly recorded in the C. S. Record of Rights; that after the death of Sarat Majhi the plaintiff is the only legal heiress acquired the suit property; that in 1941 she sold the suit property to one Chintamoni Hazra and that on 2. 8. 58, she repurchased the suit property from Chintamoni Hazra and since then she was in possession of the same. But the defendants without any lawful right harvested the paddy from the suit land from 1. 12. 60. On enquiry, it was ascertained that the defendants illegally got their names recorded in the C. S. Record of Rights and dispossessed the plaintiff. Hence, the suit was filed.
( 4 ) THE suit was contested by the Defendant Nos. 2 to 8 by filing written statement in which the material allegations were denied and it was specifically stated that the defendants all along have been occupying the suit property as the owner and that the father of the plaintiff, who was entrusted to get the names of the original owners recorded in the C. S. Records of right, managed to get his own name recorded in the "possession" column of the C. S. Record of Rights. The defendants accordingly prayed for dismissal of the suit.
( 5 ) ON the basis of the respective pleadings, the learned Munsif framed issues and after considering the evidence adduced by the parties decreed the suit and declared the right, title and interest of the plaintiff in the suit property and ordered for khas possession after evicting the defendants from the suit property.
( 6 ) AGAINST the said decree Title Appeal No. 123/63 was filed and the appellate Court confirmed the judgment and decree of the trial Court. The defendants thereafter preferred a second appeal which was numbered as S. A. 1680/65. Hon'ble Mr. Justice Ambika Pada Bhattacharyya by his judgment dated 7. 3. 76 set aside the finding of the first appellate Court and sent the suit back on remand with a finding that the plaintiff was to prove her title and also to rebut the presumption of the C. S. Record of Rights.
( 7 ) AFTER the remand the first appellate Court considered the materials on record and passed the impugned judgment allowing the appeal and dismissing the Title Suit mainly on the ground that the plaintiff failed to prove her title in respect of the suit property and that the presumption of the C. S. Record of Rights was not rebutted by her.
( 8 ) IN course of hearing of this appeal, the respondents did not appear and contest in spite of service of notice. But at the time of admission hearing the judgment of the first appellate Court was stayed by an order dated 10. 6. 82 on condition of the plaintiff/petitioner's depositing a sum of Rs. 1000/- by 31. 8. 82 in the trial Court and also on her depositing in every year the said amount till the disposal of the appeal. There was also a direction that the parties shall not be at liberty to withdraw the said amount till the appeal is finally disposed of.
( 9 ) IT is also to be noted that no substantial question of law was framed at the time of admission of the second appeal, but after hearing the learned counsel for the appellant the following substantial questions of law were framed :"i. . For that the learned Judge of the Court of app
