Calcutta High Court (Appellete Side)
Abdul Ohab Sk. & Ors vs Abdus Salam & Ors on 21 September, 2021
21.09.2021
Item No.24
RP
S.A. 283 of 2013
(Via Video Conference)
r
Abdul Ohab Sk. & Ors.
Vs.
Abdus Salam & Ors.
Mr. Partha Pratim Roy
.... For appellants
Mr. Roy, learned advocate appears on behalf of
appellants. He submits, Md. Ali Sk. was original
owner. Said owner had four sons and two daughters,
Fazlu Rahaman, Moslem Sk., Hassain Sk., Hossain
Sk., Samedan Bibi and Sayara Bibi. The trial Court
found that name of Md. Ali Sk. was recorded in
Cadastral Survey Record of Rights (CS ROR). The suit
was for declaration of joint property and injunction.
His clients were plaintiffs. They are claiming under
Hossain Sk. and Hassain Sk.
Defendants claimed that there had been
partition, pursuant to which Moslem Sk. gifted his
part of the property to his wife Salima. Salima also
purchased part of the property belonging to Fazlu Sk.
@ Faizuddin. Thus, she came to be owner of the
property and applied for rectification of the records.
The rectification happened in year 1956 and thereafer
taxes were paid accordingly. On this the trial Court
found that the claim was based on partition but the
memorandum of partition was not produced. Trial
Court correctly held that title could not be proved by
entry or even rectified entry in ROR. Furthermore,
the contention that the suit was barred by limitation
was abandoned at trial. The lower appellate Court
erred in reversing the decree on grounds plaintiffs
had accepted the partition and that the suit was
barred by limitation.
Issues no.3 and 4 framed by the trial Court
are reproduced below:-
"3. Whether the suit is barred by law of
limitation or not?
4. Whether plaintiffs are estopped by
principle of waiver, estoppel and
acquiescence or not?
Said issues were decided at trial Court, as follows:-
"Neither of the parties to this suit raised these
issues either at the time of hearing or during
the course of argument and on close scrutiny
of the entire materials on record, this court
finds nothing to decide these issues against
the plaintiffs hence these issues are decided
in favour of the plaintiff."
It appears from judgment of the lower
appellate Court, said Court appreciated plaintiffs' to
have two contentions. First contention is assertion of
title, rejected on ground plaintiffs had not raised
objection, when rectification in the record was made,
despite having notice of objection case and thereafter
seeing rent paid pursuant to the rectification. Said
Court was of view, entry in the Revenue Survey
Record of Rights (RS ROR) reflected real state of
affairs, i.e. persons recorded therein had title.
Second contention is the second ground of rejection,
that the suit was barred by limitation under section
58 (article 58).
We admit the appeal on following questions
to be answered.
"I) Whether entry in the record giving rise to
rebuttable presumption of title can be said to
have been accepted by plaintiffs on bringing
the suit long time thereafter, in which the
issue of limitation was decided at trial, in
their favour?
II)Whether in deciding title, the basis of which
is assertion of partition, there could be
presumption in respect thereof in absence of
the memorandum of partition, said to be the
basis for rectification of the record?"
Appellants will take steps for removing the
defects, stated in noting dated 10 th September, 2021,
in order sheet.
Lower Court records be called for, on receipt
of which appellant will put in requisites for
preparation of paper books and issuance of notice of
appeal.
Liberty to mention before the learned single
Judge for hearing of the appeal, when made ready.
(Arindam Sinha, J.)
(Sugato Majumdar, J.)
