Calcutta High Court (Appellete Side)
Samrun Bibi @ Samrul Bibi vs K. Sriniwas Rao & Anr on 28 March, 2022
5. SAT 3 of 2020
28-03-2022
sg
CAN 1 of 2020 (old CAN 458 of 2020)
Ct. 8
Samiran Bibi @ Samiya Begum @
Samrun Bibi @ Samrul Bibi
Versus
K. Sriniwas Rao & Anr.
Mr. Piyush Chaturvedi, Adv.
Mr. Sattwik Majumder, Adv.
...for the appellant
The second appeal has come up for admission.
The second appeal is arising out of a judgment and decree
dated 29th March, 2019 passed by the learned Civil Judge (Senior
Division), Raghunathpur, Purulia in Title Appeal No. 45 of 2018
(previously Title Appeal No. 10 of 2018), affirming the judgment
and decree passed by the learned Civil Judge (Junior Division) on
17th April, 2018 in Title Suit No. 8 of 2015.
Mr. Piyush Chaturvedi, learned Counsel appearing on behalf
of the appellant submits that the second appeal is to be admitted as
the findings on the title of the plaintiff were perversed and on
complete mis-appreciation of the evidence.
In order to ascertain if such were the facts over which the
second appeal could be admitted, we have gone through the
judgments of both the Courts on the issue with regard to title and
the claim of the appellant as owner by adverse possession. It
appears from the judgments of both the Courts that the plaintiff, in
support of his title to the suit property, produced the original
registered sale deed no. 5269 dated 25th May, 1963, certified copy
of RS khatian no. 362 of Mouza Palaskola, rent receipt, a letter
issued from Beko Gram Panchayar dated 26th November, 2012
and certified copies of the order sheets of pre-litigation case no.85
of 2014. The defendant as against the aforesaid documents,
produced a certificate of Panchayat Pradhan issued on 27 th
September, 1989 and electric bill from May 2012 to 2017. In a
suit for declaration of title, the plaintiff has established the title
over the suit property irrespective of the witness of the defence.
In the instant case, the documents exhibited by the plaintiffs
conclusively established that the plaintiffs are the owners of the
property. The evidence of the defendant has not shaken any
foundation laid by the plaintiffs in the pleadings supported by oral
and documentary evidence. The claim for adverse possession has
not been established. Mere continuous possession does not mean
that the defendant has acquired any title by way of adverse
possession. The defendant has failed to establish that the
possession is continuos, uninterrupted and hostile and such
possession is detrimental to the claim of the ownership of the
plaintiff. In other words, the evidence has to be that the defendant
by reason of his continuous possession has dealt with the property
as if she were the owner and such threat should be open. There is
nothing on record to show that the defendant would be able to
establish such claim.
A civil trial has to be decided on the basis of pre-ponderance
of probabilities. The person having a better title is entitled to the
relief as opposed to the person who could not establish his title at
all or a claim in respect of the property in question. The sale deed
read with the other documents clearly establish the title of the
plaintiffs over the suit property. There cannot be any doubt that
the plaintiffs have the document of possession in their favour
whereas the defendant has nothing to defend herself. It is also
important to note that the entry in the record of rights published in
the name of the plaintiffs is an evidence of possession and such
entry in the record of rights shall be presumed to be correct until it
is proved by evidence to be incorrect. There was no evidence on
record to show that the defendant made any attempt to correct the
record of rights. The correctness of the exhibit-2 (certified copy of
the RS khatian) could not be shaken by the defendant. The
document of title (Exhibit-1) and the document of possession
(Exhibit-2) filed by the plaintiffs supporting their case are more
acceptable with regard to the title of possession by the plaintiff as
opposed to a claim of the defendant by adverse possession. It is
also important to note that the defendant was unable to produce
any document to show that the suit property was ever belonged to
Khoda Box through whom the defendant is claiming her title.
We do not find any substantial question of law for
admission of the second appeal. The second appeal is not admitted
and stands dismissed. The application being CAN 1 of 2020 (old
CAN 458 of 2020) also stands dismissed. However, there shall be
no order as to costs.
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance of all requisite
formalities.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
