Calcutta High Court (Appellete Side)
Ct-08 Sri Sri Guru Gouranga ... vs Panchu Sheikh & Anr on 3 January, 2023
12 03.01.2023 SAT 4659 of 2006
Ct-08 Sri Sri Guru Gouranga Gandharbika Giridhari Jew
Vs.
Panchu Sheikh & Anr.
ar Mr. Chanchal Kumar Dutta
... For the Appellant
The appellate decree dated 18th August, 2006
affirming the judgment and decree passed by the
trial court on 28th March, 2001 in a suit for
declaration and for injunction is the subject
matter of challenge in this second appeal.
The suit filed by the plaintiff was dismissed.
The first appellate court affirmed the judgment of
the trial court.
We have carefully perused the judgment of
the first appellate court as well as the trial court
and the grounds of appeal.
The principal question is whether the
plaintiff-deity has any right over the suit
property. It appears from the record that one
Shyamal Krishna Brambhachari, one of the
Sebayets of plaintiff-deity, was examined as P.W
3. Two other witnesses, namely, Baidyanath
Mukherjee and Najir Sheikh, P.W 1 and P.W 2,
were also examined to prove the title of the
plaintiff-deity over the suit property. The
plaintiff also relied upon R.S record of rights
(Ext.1) and K.B Khaitan (Ext. 2) to establish his
title. The defendants produced witnesses and
relied upon attested copy of L.R record of rights
(Ext.A), dakhilas (Exts. B, B/1 and B/2), L.R
record of rights(Ext.C), copy of order of A.D.M
(LR), (Ext-E) and C.S. record of rights (Ext-F).
Baidyanath Mukherjee, P.W 1, is a State
Government employee. On 8.12.1999 he was
attached to the office of B.L&L.R.O, Nabadwip.
He was summoned to produce Exhibit-1 and
Exhibit-2 in respect of Plot no. 330, Mouza-
Ballaldighi. In his evidence he has stated that
the name of the plaintiff-deity was duly
published in respect of Plot no. 330 pertaining to
Khatian no. 1262 of the said mouza. It was his
further evidence that the name of the plaintiff-
deity was published at the stage of K.B
settlement in respect of the property in question.
However, in his cross-examination he admits
that name of the defendant Panchu Sheikh was
published as raiyat in LRROR in respect of Plot
no. 330 appertaining to L.R Khaitan no. 729/1.
P.W 2, Najir Sheikh, deposed that plaintiff-
deity is the actual owner of the property in
question. The father of the defendant no. 1 used
to cultivate that land as Bargadar. Defendant
no. 2 Panchu Sheikh also used to cultivate it as
Bargadar, but he surrendered his Bargadarship.
However, during his cross-examination he could
not produce any document relating to the
property in question at any point of time.
Shyamal Krishna Brambhachari, P.W 3, one
of the Sebayats of plaintiff-deity, deposed that
the defendant no. 1 is the Bargadar in respect of
the property in question under the plaintiff-deity
and taking advantage of such position he made
an attempt to dispose of the property in question
some time in the year 1992 without any
authority.
The defendant no. 1 deposed that the
property in question was recorded in the name of
Keshmat Mondal in C.S Khatian and he was his
maternal uncle. After the death of Kesmat
Mondal he became the owner of the said property
and recorded his name in the finally published
L.R Khatian in respect of the property in
question.
It was the positive case of Punchu Sheikh
that the plaintiff-deity has no right, title and
interest over the suit property and he was not at
all a Bargadar in respect of the property in
question. The trial court as well as the first
appellate court noticed that R.S Khatian in
respect of the suit property in question stands in
the name of the plaintiff-deity. But in finally
published L.R Khatian, the name of the
defendant no. 1 Panchu Sheikh was recorded as
raiyat. It is true that the record of rights does
not create any title but it carries presumption of
possession to the person to which it relates. The
trial court as well as the first appellate court has
relied upon Mahabir Pandey and Ors. Vs.
Sashibhushan Dube, reported in 1985 C.W.N
357 for the proposition that if there is a conflict
between entry of two Khatians the later one is
presumed to be correct.
Both the courts have relied upon Exhibit-E
and the order of B.L & L.R.O, Nabadwip
pursuant to which L.R record of rights(Ext.C)
was finally published in the name of Punchu
Sheikh as raiyat. It further appears from
Exhibit-B series that the defendant no. 1 Punchu
Sheikh paid rent to State.
In view of Exhibits B, C and E there are clear
presumption of possession in favour of Panchu
Sheikh. Moreover, the suit is filed by the
plaintiff-deity for declaration of title and onus
lies upon the plaintiff-deity to prove its case by
sufficient evidence. Moreover, the defendant on
the strength of his possession can resist
interference from the plaintiff, who has no better
title than himself. It is equally settled that in the
absence of proof of better title possession or prior
peaceful settled possession is itself an evidence
of title. Law presumes the possession to go with
the title unless rebutted [Subramaniaswamy
Temple, Ratnagiri v. V. Kanna Gounder
(Dead) by Lrs. reported in 2009(3) SCC 306].
The trial court relied upon the decision of the
Calcutta High Court in Roy and Co. & Ors., v.
Nani Bala Dey & Ors., reported at AIR 1979
Cal 50 for the proposition that in a suit for title
the plaintiff can only succeed on the strength of
his own case and not on the basis of any
weakness of the defence. This observation was
made in view of the submission made on behalf
of the appellant that although in the written
statement it was alleged that Kesmot Mondal and
others were the owners of the suit property, the
defendants did not produce any document to
show that his father became the owner of the
property in question by virtue of a registered
instrument, as pleaded in his written statement.
However, as rightly observed by the trial court as
well as the first appellate court that in a
declaratory suit for title it is for the plaintiff to
prove and establish his title on the strength of
his own case and not on the defendant's
weakness, as held in Roy and Co. & Ors.
(supra) in paragraph 9.
Under such circumstances, the appeal
accordingly fails.
The second appeal is, therefore, summarily
dismissed under Order XLI Rule 11 of the Code of
Civil Procedure at the admission stage.
There will be no order as to costs.
(Uday Kumar,J.) (Soumen Sen, J.)
