Versus Khorshed Ali Mondal Mr. Tapas Kumar Bhattacharya, Adv. Mr. A. Bhattacharya, Adv. Mr. B.P. Singha Roy, Adv. …for the appellants We have heard the Mr. Tapas Kumar Bhattacharya, learned Counsel for the appellants. The defects have not been removed.

We have been informed that during the pendency of the appeal, the appellant no.1 died. No application for substitution has been filed. However, we invited Mr. Bhattacharya to make his submission on the merits of the matter.

Mr. Bhattacharya has submitted that the second appeal is required to be admitted as the findings of the appellate court, on consideration of the application filed under Order 41 Rule 27 of the Code of Civil Procedure , is in his favour but the conclusion arrived at by the appellate court on the basis of the materials disclosed in the said petition is on a complete mis-appreciation and misreading of the evidence on record.

In the application filed before the appellate court under Order 41 Rule 27 of the Code of Civil Procedure , the plaintiffs/appellants filed RSROR. Even if we assume that the said RSROR has an evidentiary value, it cannot upset and alter the line of succession as it is revealed from the evidence of the PW-1 who in his examination in chef had categorically stated that “the total 59 sataks of land originally belonged to Premchand and it is also a fact that after the death of Pramchand, the suit property was devolved upon his three sons. The plaintiff no.1 also admitted in his examination-in-chef that Rabbul died leaving behind his tow sons and Rasolal died leaving behind his two sons. He has also stated that Gofur died leaving his wife, four sons and tow daughters.”

The recording of the names of the parties in RSROR is not a proof of title. If the basis of the recording the RSROR is disproved by cogent evidence which in this case is the evidence of the plainitffs/PW-1, the findings arrived by both the Courts with regard to line of succession cannot be said to be perversed. The plaintiffs could not establish its exclusive right over 47 sataks of land and their case is demolished by their own admission during the chief of PW-1.

Click Here to Read the rest of this document