Nanda Dulal Ghosh & Anr vs Sg Tushar Jana & Ors
2022 Latest Caselaw 6666 Cal

SA 465 of 2003 Item-13.

16-09-2022 Nanda Dulal Ghosh & Anr.

                                                    Versus
  sg                                         Tushar Jana & Ors.
             Ct. 8

                              Mr. Murali Mohan Ray, Adv.
                                                             ...for the appellants

The judgment and decree dated 23rd December, 2002 passed

by the learned Additional District Judge, Fast Track Court, 2nd

Court, Burdwan affirming the judgment and decree of the trial

court dated 26th June, 1992 passed by learned 2nd Additional Court

at Burdwan in a suit for declaration of title and injunction is the

subject matter of the second appeal.

The concurrent findings of fact with regard to title to the ka

schedule property is now being assailed in the second appeal by

Mr. Murali Mohan Ray, the learned Counsel representing the

appellants.

Mr. Ray has submitted that the possession of the plaintiffs in

the suit property is not proved as there was no prayer made in the

plaint for rectification of the deed of purchase not the plaintiff was

able to establish their right in respect of the suit property. It is

submitted that the plaintiff has failed to produce any document of

title in respect of the suit property. The alternative case of the

plaintiff with regard to acquisition of title by adverse possession

runs contrary to the claim made by the plaintiff based on title. Mr.

Ray has strenuously submitted that the second appeal is required

to be admitted on the aforesaid grounds as it raises a substantial

question of law. Mr. Ray has submitted that the trial court has

arrived at a finding that no effective decree could have been

passed when the plaintiff has not been able to prove his title. The

decree of the trial court is perverse and affirmed of the said decree

of the first appellate court disregarding the material evidence of

record leads to perversity.

We have carefully considered the judgment of the trial court

and the first appellate court with a view to find out if the appeal

can be admitted. The second appeal can be admitted provided it

involves a substantial question of law. A substantial question of

law arises when it appears that the judgment was passed

overlooking a material piece of evidence or contrary to law. It

could also happen when there is a glaring error in the form of

wrong interpretation of the documents. Concurrent findings of

facts are not to be duly interfered with unless it is manifestly

perverse. In the instant case, the plaintiffs have prayed for a

declaration of title over the properties described in schedule ka

appended to the plaint and for permanent injunction based on a

registered sale deed dated 9th April, 1936 read with the record of

rights that were exhibited as exhibit nos. 4(a) and 4(b). It is also

based on the exhibit 1 which is the CSROR of khatian no. 181.

The aforesaid documents were exhibited by the plaintiffs during

trial and were admitted into evidence. The plaintiffs have alleged

that the ka schedule properties originally belonged to Panchu

Dalui and Tirtha Dalui and the properties described in schedule

kha belonged to the five sons of Surendranath Ghosh, namely,

Gopal, Gobinda, Jitendra, Kamal and Balai. For convenience, the

parties exchanged their said properties with each other before the

CS settlement as would be evidence from the exhibit 1, Panchu

and Tirtha started owning and possessing the kha scheduled

properties and the said five brothers namely Gopal and four others

started owning and possessing the ka scheduled properties. The

possession of the said properties by way of exchange has been

recorded in the CS settlement. Apart from the aforesaid said

exchange, the said Gopal and four brothers acquired an

independent title by adverse possession in respect of the said ka

scheduled properties having had possessed the same for over 12

years. The father of the plaintiffs purchased the said ka scheduled

properties together with other properties from said Gopal and

others for a consideration under a registered sale deed dated 9 th

April, 1936 and took over possession of such properties. The deed

writer while preparing the aforesaid deed erroneously mentioned

the properties of schedule kha instead of those of schedule ka as

the properties conveyed under the deed. However, the fact

remains that the father of the plaintiffs possessed the ka schedule

properties as owner thereof for over 12 years since execution of

the aforesaid deed and till his demise. As there was no written

deed in respect of exchange and as the ka scheduled properties

were not mentioned in the deed of conveyance in favour of the

father of the plaintiffs, the settlement authorities did not record

such ka scheduled properties in the name of the plaintiffs in the

RS. In the RS such properties were recorded erroneous in the

name of Panchu and Tirtha as Korfa tenant in khatian no. 732. The

kha scheduled properties have been recorded to have been in

possession of said Panchu and Tirtha by way of exchange.

Defendant no.1 (Pulama) acquired the said kha scheduled

properties after the demise of the said Panchu and Tirtha. She

never possessed the ka scheduled properties in exchange of which

kha scheduled properties had been obtained by her predecessors

Panchu and Tirtha. Pulama later transferred the said kha scheduled

properties in favour of the defendant nos. 3 and 4 under different

deeds. Recording in respect of the said ka scheduled properties

has also been made erroneously in the name of the defendant no.1

relying upon the erroneous RS records. In view of the erroneous

RS recording, the father of the plaintiffs approached Panchu and

Tirtha for their executing a 'Na-Dabi" (no claiming) deeds in

respect o the said ka scheduled properties and they agreed to do

so. After the demise of the said Panchu and Tirtha, Pulama also

assured to execute such "Na-Dabi" deed but ultimately she

declined since she had already transferred the said ka scheduled

properties in favour of the defendant no.2 on 18th September, 1984

and since then the transferees were in possession of the ka

scheduled properties. It was contended before the trial court as

well as appellate court that in such deed which clearly interfered

with the possession of the plaintiffs in respect of the ka scheduled

property is in operative because of the recognition of the State

hereinabove. The defendants contested the proceeding. PW 1 did

not come forward to adduce any evidence. The case of the

defendants was primarily based on the RS record and the plaintiffs

merely reiterated that Panchu and Tirtha were possessing the suit

properties as "Korfa" tenants under Harmohan Ghosh and the

contemporaneous interest in the RS record should be presumed to

be correct. It was further contended that the plaintiffs were able to

prove oral exchange and in absence of establishing that there has

been any oral exchange, the suit must fail. Before us, it is argued

that the law does not permit any oral exchange and in absence of

any registered documents showing that there has been an

exchange of properties between the predecessors in the title of the

parties both the learned trial court as well as the learned appellate

court have arrived at a wrong finding.

It was in the conspectus of the aforesaid facts, we need to

appreciate the quality of the evidence in order to find out whether

any substantial question of law is involved in the second appeal. It

is the specific case of the plaintiffs before the learned trial court

that an exchange took place between the legal heirs of Bipin Dalui

on one hand and legal heirs of Surendranath Ghosh on the other,

prior to cadastral survey of C.S.R.O.R. carries with it the evidence

of such exchange. This factuam of exchange of property is also

getting support from the oral testimony of DW-1 in respect of title

of Pulama Rani Malik over 'kha' schedule property. It is fact that

R.S.R.O.R. in respect of the suit property through stands in the

name of two sons of Bipin Dalui - Tirtha and Panchu, such

document does not indicate title. A rebuttable presumption of

possession can at best be drawn up from the R.S.R.O.R. The state

being the paramount title holder could not produce any document,

demonstrating the foundation for preparation of such R.S.R.O.R.

Under such circumstances learned trial court and learned first

appellate court cannot be said to have committed any error in

holding that the predecessor-in-interest of the plaintiff had right,

title and interest in respect of 'ka' schedule property which the

plaintiffs/respondents have acquired by purchase.

In absence of any document towards settlement of land, the

mere entry in the R.S.R.O.R. as 'Korfa tenant' is of no

consequence.

Both the courts below, in our view, were justified in

interfering with the long settled possession of the parties since

they exchanged the schedule recognizing the long continuous

settled possession of the predecessor in title of the plaintiffs in

relation to the suit properties based on cogent evidence.

It was on the basis of the aforesaid evidence, we are of the

view that the appellate court was justified in confirming the decree

of the trial court. We do not find any substantial question of law

involved in the second appeal for admission. The second appeal

stands dismissed. However, there shall be no order as to costs.

(Uday Kumar, J.)                               (Soumen Sen, J.)