The entry in the RSROR shall prevail over the entry in the CSROR as it is the later one. A co-sharer cannot construct a building on the common property without the consent of the other co-owners. The court can grant relief not founded on the pleadings to avoid multiplicity of suits.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This second appeal has been assailed against Judgment and decree passed in Title Appeal No. 81 of 1983 reversing the judgment and decree passed by Munshiff, 2nd Court, Serampore in Title Suit No. 48 of 1983. Division Bench of this court while admitting present second appeal, Their Lordship pleased to held that the second appeal will be heard on the grounds set out in the memo of Appeal. In the Memo of Appeal total 17 (seventeen) grounds have been set out.

2. During the course of hearing the learned counsel appearing on behalf of Appellants assailed the judgment of the court below mainly on two grounds.

(i) The entry in C.S. Record of Rights cannot prevail over the R.S. record of rights in view of the settled principle of law.

(ii) A co-sharer in an undivided property cannot construct a building without obtaining consent from other co-sharers.

3. The dispute which cropped up over the subject matter relates to land described in “ka” schedule to the plaint comprising of plot no. 1097, 1099 and “kha” schedule to the plaint comprising of plot no. 1262,1088,1100 of Mouza-Samil, District-Hooghly.

4. The appellants herein as plaintiffs filed aforesaid Title Suit No. 48 of 1983 against the respondents herein contending that one Satya charan Roy, Khama bala Dasi and Manumatha Roy each had 1/3rd share in respect of aforesaid “kha” schedule property and Satyacharan Roy was the owner of “Ka” schedule suit property to the plaint and their names were duly recorded in the RS Record of Rights. After the demise of said Satyacharan Roy plaintiff/appellant no. 1 being the predecessor of present appellants got 1/7th Share in respect of the ka schedule property and 1/21th share in “kha” schedule property and he had possessed the same along with the other co-sharers. According to the plaint case the “kha” schedule property originally belong to Kedar Roy who died leaving behind three sons late Manmatho Roy, late Harigopal Roy and late Satya Charan Roy. Satya Charan roy died leaving behind his widow and other legal heirs namely Late Sudhangshu roy, Late Kiriti Roy, Prasanta Roy, Sandhya Roy, Late Bolai Roy and Late Sadhana Roy. Aforesaid Harigopal Roy died leaving behind his widow Khama Bala Dasi. On the other hand aforesaid Manumatho Roy died leaving behind Patal Rani Roy and Patal Rani Roy died leaving behind only son Dinbandhu Roy and accordingly the heirs of Satyacharan Roy has 1/7th share in respect of “ka” schedule property and 1/21th share in “kha” schedule property. Further case is Khamabala Dasi the heir of Harigopal transferred her 1/3rd share in favour of Haradhan Roy, who became owner and possessor of 1/3rd share in the “kha” schedule property and according to the plaint case, after the demise of Manmatho Roy his daughter Patal Rani became owner of 1/3rd share and after the death of Patal Rani her only son Dinbandhu Roy inherited 1/3rd share of her mother in “kha” schedule property. Further case is while Dinbandhu Roy was in possession of 1/3rd share in “kha” schedule property, he sold it to the Plaintiff/Appellants no. 2 by executing registered deed of sale on 02.04.1980 and accordingly plaintiff/appellant no. 2 has become one of the co-sharers in respect of the “kha” schedule property and She is in possession of the said property since purchase.

5. The cause of action of the suit arose when the defendant no. 1 on the strength of a permission granted by the Gram Panchayet started construction over the said undivided property and cut down some trees. The defendant/respondents contested the suit by filing written statement and defence case is Satyahcaran and Harigopal Roy were absolute owners of “ka” and “kha” schedule properties by way of settlement granted by the then Zamindars and accordingly their names were duly recorded in the CS Record of Rights. The defendant denied that Manmatho Roy had any right title interest in the suit property and the name of Manmatho Roy as appearing in the Revisional Settlemen