Baijat Mallick & Ors vs Entaj Mallick & Ors
2023 Latest Caselaw 4882 Cal

09.08.2023
Court No.13
Item No.7
AP
                                   FA 228 of 2015

                                Baijat Mallick & Ors.
                                        Vs.
                                Entaj Mallick & Ors.

              Mr. Amit Baran Dash
              Ms. Ankana Sarkar
                                                      ... For the Appellants.

              Mr. Basudev Gayan
              Mr. Bharat Chandra Simai
              Mr. Kumaresh Dalal
                                                    ... For the Respondents.

1. The appeal is directed against a judgement and

order dated 29th February, 2012 passed by the Civil Judge

(Senior Division), 1st Court at Contai in Title Suit No.228

of 2009. The suit was for partition. The Court below found

that the defendants entirely relied upon C.S.R.O.R.

records, which also known as D.S.R.O.R. vis a vis

R.S.R.O.R. record, effected in terms of West Bengal

Estates Acquisition (Amendment) Act, 1955.

2. The Court below found that the plaintiffs/

respondents had been able to demonstrate a right to seek

partition of the properties in three schedules to the plaint

on the basis of inheritance rights.

3. Insofar as the C.S. & R.S. records are concerned,

this Court is in agreement with the Court below that

Government Record of Rights are at best indicative of

possessory rights. They can be dispelled and ignored if

appropriate documents of title are produced.

4. In sum and substance, C.S. & R.S. records may

not be conclusive proof of title. Reference has been made

in this regard to the decision of the Hon'ble Supreme

Court in the case of State of Andhra Pradesh Vs.

Hyderabad Potteries Pvt. Ltd. & Anr. reported in (2010)

5 SCC 382. At paragraph 26 of the said decision, it was

held as follows:-

"26. The sole basis of the appellant to claim the land was on the strength of entries made in survey records showing that the schedule property was surveyed as TS No. 4/2, Ward No. 66 of Bakaram Village having an area of 19,214 sq m showing it as a gap area i.e. unsurveyed area as per the old survey records and as such it could only be declared to be government land as has been recorded in Column 20 of TSLR. Apart from the said revenue record and issuance of gazette notification as mentioned hereinabove, no other material document was filed by the appellant to show that the said land belonged only to the Government. It is trite that entry in the revenue record alone may not be sufficient as conclusive proof of title nor can be relied on for proof of establishing the title as such."

5. Reliance is also placed on the decision of Prahlad

Pradhan v. Sonu Kumhar reported in (2019) 10 SCC 259.

At paragraph 5 of the said decision, the Hon'ble Supreme

Court stated as follows:

"5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. [Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191 : (2019) 2 SCC (Civ) 21; Narasamma v. State of Karnataka, (2009) 5 SCC 591 : (2009) 2 SCC (Civ) 582; Balwant Singh v. Daulat Singh, (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223] As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property."

6. What is, however, striking to this Court is that the

Trial Judge has failed to consider that the predecessor of

one of the co-sharers had transferred a property, or a

portion thereof, in the three schedules to the plaint, to a

mosque by way of an Arpannama. The mosque is

admittedly not a party to the suit.

7. The second omission that this Court notices is that

one of the properties in the schedules to the plaint was a

burial ground. Admittedly, a burial ground can neither be

transferred nor partitioned.

8. What is most striking is that the share or any

portion of the share or otherwise of the defendants in the

suit has not been declared by the Court below.

9. These are sufficient grounds by themselves for this

Court to find that relevant material on record have not

been considered by the Court below in deciding the

respective shares of the parties to Title Suit No.228 of

2009. The Court below has also left the judgment

incomplete. The matter is required to be remanded back

to the Court below for consideration afresh on the

evidence on record.

10. An application has been filed before this Court by

the appellants under Order 41 Rule 27 of the Code of Civil

Procedure to bring on record several title deeds dated 24th

May, 1921, 26th February, 1961, 17th May, 1962, 16th

May, 1962, 1st September, 2004, 2nd February, 2006, 30th

April, 1947, 6th February, 2006, 7th April, 1973

(Arpannama), 31st May, 1921, and a criminal proceeding

of 1913.

11. In CAN 10672 of 2017, the explanation given is

that one of the defendants, a co-sharer, who was

conducting suit on behalf of the defendants/appellants

was 66 years old and had forgotten to take the said

documents to their lawyer. It is also stated that the

documents got misplaced.

12. The explanation is to say the least, feeble.

However, given the fact that the title deeds are a more

substantial proof of ownership of a property, the same

constitutes vital evidence without which effective

judgement could not have been delivered by the Court

below. The said documents are vital and necessary, even if

this Court were to consider the evidence and decide the

respective shares of the parties.

13. Opposing application under Order 41 Rule 27,

learned counsel for the respondents would rely upon two

decisions of the Supreme Court and one decision of a

Single Bench of this Court.

14. Paragraph 19 of the decision of the Supreme Court

in the case of N. Kamalam (dead) and Anr. Vs.

Ayyaswamy and Anr. reported in AIR 2001 SC 2802

and paragraph 20 of the decision of the Supreme Court in

the case of Satish Kumar Gupta Vs. State of Haryana

and Ors. reported in AIR 2017 SC 1072 are relied upon.

Paragraph 84 of a judgement of a Single Bench of this

Court in the case of ITC Ltd. Vs. Controller of Patents

and Designs and Ors. reported in AIR 2017 Calcutta

156 is also placed opposing the said application.

15. This Court notices that in the case N. Kamalam

(dead) and Anr. (supra) the Hon'ble Supreme Court was

seized of an application under the Indian Succession Act,

1925 and proof of a Will. In the case of Satish Kumar

Gupta (supra) the Hon'ble Supreme Court was concerned

with a case of compensation under the Land Acquisition

Act, 1894. In the case of ITC Ltd. (supra) the Single

Bench of this Court was considering the case under the

Designs Act, 2000.

16. The facts and circumstances of the instant case

are quite different from the facts of the other cases. In the

instant case, the rights of the co-sharers in the properties

to the scheduled of the plaint are in issue.

17. It is now well-settled that a decision is an authority

for what is decided in facts of such case. It may not be

appropriate to look at a conclusion of a Court dehors the

facts.

18. It is argued that evidence should not be allowed to

be introduced by an appellate forum under Order 41 Rule

27, when an attempt has been made by the applicants to

fill in lacuna in is defence in the first Court.

19. It also should not be allowed if sufficient

explanation is not there but indicate as to why the said

evidence could not be produced before the Trial Judge in

the first place.

20. The title deeds sought to be produced before this

Court and leave sought under Order 41 Rule 27 of the

Code of Civil Procedure are indeed the vital evidence that

would have a bearing result on the suit decision i.e. as to

whether the plaintiffs and the defendants have any share

whatsoever in the suit property, and if so, to what extent

do they have such share.

21. Since this Court has already indicated that the

matter must be considered afresh by the Trial Court on

remand, the application under Order 41 Rule 27 is

allowed.

22. The documents sought to be produced are taken

on record and shall form part of the records of the suit in

the Court below, however, subject to formal proof. The

Court below shall consider the matter afresh. The

additional documents that are disclosed before this Court

under Order 41 Rule 27, may be proved to the satisfaction

of the Court below by the appellants herein.

23. The Court below shall thereafter hear arguments

on the additional evidence and, if necessary, frame further

issues within the meaning of Order 15 Rule 3.

24. After recording evidence and allowing the

witnesses of the appellants to be examined, the Court

below shall reappraise the evidence already recorded along

with fresh evidence and take a suitable decision in the

matter.

25. The observations of this Court as indicated

hereinabove, as regards the mosque and burial ground

shall be borne in mind and, if necessary, the Court below

may add parties. Such parties shall be given an

opportunity to file written statement in the matter.

26. It is expected that the aforesaid exercise be

completed by the Court below within a period of six

months from date.

27. For the reasons indicated hereinabove, the

impugned judgement and decree shall stand set aside.

28. This Court has found the appellants as well as the

respondents to be rather casual and lackadaisical in

producing vital evidence and documents in the Court

below. Substantial delay has been caused in adjudication

of the issues between parties i.e. the respective shares of

the co-sharers. The appellants herein, the defendants in

the suit, therefore, shall pay costs assessed at

Rs.41,000/- to the D.L.S.A., Purba Medinipore within a

period of one month as pre-condition for this entire order

to take effect.

29. It is made clear that in default of payment of costs

as indicated hereinabove, the appeal itself shall stand

dismissed.

30. With the aforesaid observations FA 228 of 2015

shall stand dismissed.

31. In view of the disposal of the FA 228 of 2015,

connected applications, if any, shall also stand dismissed.

32. Let the LCR be sent down to the Court below as

expeditiously as possible by Special Messenger. The cost

of Special Messenger shall be put in by the respondents

by 14th August, 2023 before the concerned Department.

33. All parties are to act on a server copy of this order

duly downloaded from the official website of this court.

(Rajasekhar Mantha, J.)

(Supratim Bhattacharya, J.)