The entry in the Record of Right is not binding if the title to the property is with the party assailing the entry, and alleged oral exchanges may not be sustainable under law.

1. Heard Mr. Mukherjee, learned Counsel for the appellant. We are apprised of the fact that the suit plot Nos. 4276 and 4276/4705 having a total area of 35 decimals described in 'ka' schedule of the plaint, a translated copy of which is placed on record, was amicably partitioned by a registered partition deed dated 5th March, 1954 between two brothers namely, Ramkrishna Pramanik and Vriguram Pramanik, which was marked before the learned Trial Judge as Ext. 9. Both the plots situated adjacent to each other. By virtue of said partition deed the northern part appertaining to plot No. 4276 measuring 19 dec. was allotted in favour of Ramkrishna Pramanik, whereas southern part measuring 16 dec. appertaining to plot No. 4276/4705 was allotted to Vriguram Pramanik.

2. Ramkrishna Pramanik died leaving two sons namely, Biswanath Pramanik and Kashinath Pramanik. After death of their father, Biswanath and Kashinath by registered partition deed dated 21st February, 1975 got their joint properties partitioned including the suit plot No. 4276 by which the aforesaid northern side of plot No. 4276 measuring 19 doc. was allotted to Biswanath Pramanik.

3. Similarly, Vriguram Pramanik sold his land measuring 16 dec. to the defendant of the suit some times in the year 1979.

4. Biswanath Pramanik also sold the entire 'kha' scheduled property to the plaintiff of the suit by four deeds of sale dated 3rd May, 1985 and 6th May, 1985 marked as Ext. 5 series, which were also followed by four registered deeds of rectification dated 27th December, 1993 marked as Ext. 6 series for correction of mistake.

5. It was contended in the plaint that though by virtue of sale deeds of the year 1985 marked as Ext. 5 series, the entire land measuring 19 dec. as was allotted in the share of Ramkrishna Pramanik was subsequently allotted in favour of Biswanath Pramanik (Ext. 6) and though the same was sold to the plaintiff, but due to wrong entry in R.S. Record of Right, the number of plot was wrongly mentioned as 4276/4705 instead of 4276 in the sale deeds and for that reason the said mistake was rectified by four separate registered deeds of rectification (Ext. 6 series).

6. Cause of action arose in the suit, as taking advantage of the wrong entry in R.S. Record of Right the defendants had claimed right title and interest over the 'kha' scheduled property.

7. The defence case as was advanced and we are apprised of the fact that the deed of partition dated 5th March, 1954 between Ramkrishna Pramanik and Vriguram Pramanik was admitted. It was contended that sometimes in the year 1964 there was an amicable exchange by which Vriguram Pramanik, predecessor-in-interest of the defendants got plot No. 4276 as described in schedule 'kha' and Ramkrishna Pramanik got plot No. 4276/4705 as described in schedule 'ga' in the plaint.

8. Further case is that in view of the amicable exchange the entry in R.S. Record of Right was prepared and though the parties by virtue of said oral exchange have been exercising respective possession over the subject property, learned Trial Court decreed the suit under wrong perception which was equally affirmed by the First Appellate Court without appreciating the grounds of appeal and evidence on record.

9. Learned Counsel for the appellant has argued to admit the appeal on two grounds, viz:

(1) While the plaintiff had virtually challenged the entry of R.S. Record of Right, the suit is bad for non-joinder of the State and the concerned Block Land & Land Reforms Officer as parties to the suit, and,

(2) Since the defendants/appellants all along are in possession of 'kha' scheduled property, without prayer for recovery of possession the suit is barred under section 37 of the Specific Relief Act.

10. Now we have scrutinized the materials on record and the judgments of both the Courts below.

11. At the very outset we have no hesitation but to keep observation that in a civil suit though the declaration cannot be sought for that any record of right is wrong b