Ratan Kumar Goswami & Ors vs Sg Mohadeb Sarkar & Ors
2022 Latest Caselaw 6704 Cal

SA 38 of 2022 Item-33.

19-09-2022 Ratan Kumar Goswami & Ors.

                                                   Versus
  sg                                       Mohadeb Sarkar & Ors.
             Ct. 8

In view of our earlier order dated 15 th September, 2022, we

propose to consider the question of admission of the second

appeal in absence of the appellants. We put it on record that the

appellants, in spite of notice, did not appear earlier. The appellants

are not also represented today.

We have considered the judgment and order of the First

Appellate Court dated 18th December, 1997 affirming the

judgment of the trial court dated 20th November, 1996 in a suit for

declaration of title and for permanent injunction dated.

The trial court decreed the suit on contest by declaring the

title of the plaintiffs in respect of Ga scheduled property. The said

finding is based on oral and documentary evidence adduced by the

plaintiffs and on consideration of the defence by the defendants. It

emerges during evidence that the plaintiff, Gourishankar Sarkar,

since deceased, purchased the Ka scheduled property from four

persons who inherited the same from their father Kshudiram

Mukherjee by virtue of a registered Kobala dated 26 th September,

1971 (marked Exbt.1). The original plaintiff acquired right, title

and interest in the Ka scheduled property by Exhibit-1. Kshudiram

Mukherjee was the original owner of the Ka scheduled property

and both C.S.R.O.R. and R.S.R,O.R. were prepared in his name

and on his demise his four sons namely Shiva Prasad, Shyama

Prasad, Deva Prasade and Satya Prasad inherited the same in

equal share and thereafter they sold the Ka scheduled property to

the original plaintiff Gouri Shankar Sarkar by a deed of sale

(Ext.1) and thus he acquired title in the Ka schedule property and

on his demise during pendency of this suit the substituted

plaintiffs as his legal heirs have become owners of the Ka

schedule property in equal share. Since it is admitted that GA

schedule is part of the Ka schedule, the substituted plaintiffs have

title in the GA schedule property. The pro-defendant no.3, now

deceased, had no title in the Ga schedule property and he had no

right to transfer the Ga schedule property. The defendants 1 and 2

did not acquire any right, title and interest in the Ga schedule

property by virtue of registered kobala dated 9.11.75 executed by

the pro-defendant no.3 (Ext. A1).

It was on the aforesaid basis, the suit was decreed in favour

of the plaintiffs. The First Appellate Court, on consideration of the

relevant exhibits and the oral and other documentary evidence,

affirmed the order of the trial court. In concurring with the said

finding, the first appellate court has relied upon the CS khatian no.

250/1 (Ext. 3) and the RS khatian no. 2500/1 (Ext.2). It appears

from the exhibit 3 that Kshudiram Mukherjee was recorded in the

13th Col. of C.S. record as owner of the suit plot no. 1090 and the

names of Surendra Nath, Indra Narayan and Nabin Kumari were

mentioned as licensees under Kshudiram. From exhibit 2 it is

clear that Kshudiram Mukherjee was recorded as owner and

Surendra Nath and the pro-defendant no.3 were recorded as

licensees under him in respect of the suit plot in the 13 th Col. of

the R.S. record. The plaintiffs have relied on the C.S. and R.S.

records. Their case is that both C.S. and R.S. records were duly

prepared. The defendants have challenged both the C.S.R.O.R.

and R.S.R.O.R.

It is settled law that R.O.R. is not a document of title. But

the R.O.R. raises a presumption of title. The entry in the R.O.R.

will be presumed to be correct unless rebutted by cogent and

convincing evidence. Further the party relying on the correctness

of the entry in R.O.R. is not required to prove the correctness. On

the contrary, the party challenging the same has to prove that

entries in R.O.R. are erroneous.

Therefore, the burden of proof rests upon the defendants to

prove that both C.S. and R.S. records are erroneous by adducing

cogent and convincing evidence.

The aforesaid evidences clearly establish that Kshudiram

was the owner of the Ka schedule property and that Surendra and

Indra were not the original owners of the same. The plaintiff is the

son of Surendra and pro-defendant no.3 is the son of Indra.

Kshudiram died leaving behind his four sons, namely, Shiba

Prasad, Shyama Prosad, Debi Prasad and Satya Prasad. It is not in

dispute that Kha and Ga schedule properties are part of and

included in the Ka scheduled property. Since Surendra and Indra

were not the owners of Ka schedule property, the plaintiff as legal

heir of Surendra and pro-defendant no.3 as legal heir of Indra had

no right to inherit the Ka schedule property. The evidence on

record clearly established that the possession of Surendra, Indra

and their sister Nabin Kumari are in possession over the Ka

schedule property under permission and entries in both the CS and

RS records regarding that are correct. Based on such findings, the

appellate court confirmed the decree of the trial court.

We do not find any substantial question of law involved in

this appeal. There cannot be any dispute that CS and RS records

go to show that Kshudiram Mukherjee was the owner of the

property while Surendra and Indra and their sister were the

licensees. The evidences of the defendants were insufficient to

prove that the entries of the records of right are incorrect.

In view of such concurrent findings based on evidence, we

are not inclined to admit the second appeal.

The second appeal stands dismissed. However, there shall

be no order as to costs.

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