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IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, PRASENJIT BISWAS, JJ.
Swapan Kumar Majhi – Appellant
Versus
Narayan Chandra Majhi and Others – Respondents
FA No. 12 of 2017
Decided On : 27-07-2023
PARTITION SUIT - RECORD OF RIGHTS - TITLE - EVIDENCE - PRESUMPTION - EFFECT OF ENTRY - BURDEN OF PROOF - LEGAL MAXIM NEMO DAT QUOD NON HABET - APPLICATION.
Fact of the Case:
In a suit for partition, the plaintiff claimed a 1/3rd share in the suit property, alleging that the original owners, Kartick, Avay, and Gopal, had transferred their share to Rajendra, who gifted it to his wife, Sudharani, who in turn gifted it to the plaintiff's predecessors. The defendants, claiming a 2/3rd share, denied the transfer, asserting that Kartick and Avay never sold their share to Rajendra.
Finding of the Court:
The court held that the mere entry in the record of rights in the plaintiff's favor did not conclusively establish their title, as the presumption of accuracy of such entries was rebuttable by evidence. The court found that the plaintiff failed to produce the original deed of sale from Kartick and Avay to Rajendra, or any other cogent evidence to prove their title. It also noted that the defendants had specifically denied the sale and had not admitted the plaintiff's title.
Issues: 1. Whether the entry in the record of rights in the plaintiff's favor was conclusive evidence of their title? 2. Whether the plaintiff had the burden of proving their title by producing the original deed of sale or other cogent evidence? 3. Whether the defendants could deny the plaintiff's title and assert their own right, title, and interest in the joint property?
Ratio Decidendi: 1. The court held that the entry in the record of rights, while raising a presumption of accuracy, was not conclusive evidence of title and could be rebutted by evidence. 2. The court held that the plaintiff, as the party asserting title, had the burden of proving their title by producing the original deed of sale or other cogent evidence. 3. The court held that in a partition suit, the defendants had the right to deny the plaintiff's title and assert their own right, title, and interest in the joint property.
Final Decision: The court allowed the appeal, set aside the trial court's judgment and decree, and dismissed the plaintiff's suit.
JUDGMENT :
HARISH TANDON, J.
1. An instant appeal arises from a judgment and decree dated 23rd April, 2014 passed by the learned Civil Judge (Senior Division) Ghatal in title suit no. 29 of 2008 whereby and whereunder the suit was decreed on contest declaring that the plaintiff/respondent has 1/3rd share and the defendants therein are the owner to the extent of undivided 2/3rd share in respect of the suit property and further directed to the parties to make an amicable partition by metes and bounds within a stipulated time.
2. The plaintiff/respondent filed a suit for declaration of their share to the extent of 1/3rd in respect of the subject property and separation thereof by partition to be divided by metes and bounds. The undisputed facts unfold from the record is that one Kartick Majhi, Avay Majhi and Gopal Majhi jointly owned 1/3rd share (5 Anna 6 Gonda 2 Kora 2 Kranti) of the suit property and the rest of the suit property i.e. 2/3rd share (10 Anna 13 Gonda 1 Kora 1 Kranti) are owned and possessed by Khetra Majhi and Mahendra Majhi. The plaintiff/respondent claimed title through the owners of 1/3rd share and the defendants/appellants are claiming their right, title and interest by way of inheritance through the owners of 2/3rd shares.
3. According to the plaintiff/respondent, the aforesaid three owners namely, Kartick, Avay and Gopal all along owned and possessed the undivided 1/3rd share in respect of the property out of which the Gopal being a bachelor and subsequently died, his share devolved upon the surviving brothers. It is alleged by the plaintiff/respondent that the said Kartick and Avay Majhi sold, transferred and conveyed the undivided 1/3rd share in respect of the suit property in favour of the Rajendra Nath Majhi who executed a deed of gift in favour of his wife namely, Sudharani Majhi. The Sudharani Majhi during her life time executed and registered the deed of gift in favour of the donees namely, Malati Rani Majhi, Alok Kumar Majhi and Pulak Kumar Majhi who after accepting the deed of gift sold, transferred and conveyed the said undivided 1/3rd share to Narayan Chandra Majhi, the plaintiff/respondent herein.
4. On the other hand, the contesting defendants/appellants traced their title through the owners of the undivided 2/3rd share by way of an inheritance and denied categorically that the said Kartick and Avay never sold, transferred and conveyed their undivided 1/3rd share in respect of the joint property to Rajendra Nath Majhi.
5. On the conspectus of the aforesaid stands taken in the respective pleadings, the parties adduced evidence and it goes without saying that several deeds relating to the aforesaid undivided 1/3rd share were produced and marked exhibit in the suit. The plaintiff/respondent banked upon the deed of gift executed by Rajendra in favour of his wife namely, Sudharani in order to support his stand that Rajendra who was the owner of the said undivided 1/3rd share had divested his right, title and interest by executing and registering the deed of gift in favour of his wife namely, Sudharani. Subsequent deeds executed by Sudharani and her grand-children and the sale in favour of his plaintiff are also marked exhibits in the said suit.
6. It is pertinent to record that the deed affecting their right, title and interest of the original owners namely, Kartick and Avay in favour of Rajendra was not produced. Even a recital of the deed of gift executed by Rajendra in favour of his wife Sudharani does not contain any statement relating to the sale having affected in favour of Rajendra by the said Kartick and Avay Majhi.
7. The first witness of the plaintiff in his cross-examination categorically deposed that he cannot say how Rajendra got the property nor he had any such deed. He further deposed that he never saw Kartick and Avay and therefore is unable to throw any light thereupon. Interestingly, the 4th witness of the plaintiff being the son of the Rajendra in his crossexamination deposed that he cann
The mere entry in the record of rights in favor of a party does not conclusively establish their title, as the presumption of accuracy of such entries is rebuttable by evidence. The party asserting t....
The judgment emphasizes the importance of proving the validity and authenticity of mutation entries, the burden of proof regarding partition deeds, and the rebuttal of presumptions based on revenue r....
The judgment emphasizes the legal principle that mutation does not confer title and a co-sharer cannot relinquish their right without executing a relinquishment deed.
The burden of proof lies on the person asserting a fact until it is discharged, and no party can travel beyond its pleading.
Revenue records do not confer ownership; adverse possession requires clear and unequivocal evidence of denial of title.
Possession by one co-owner is not adverse without clear ouster; revenue records do not confer title.
Mere entries in revenue records do not confer title; to maintain a suit for declaration, a party must also seek possession.
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