Calcutta High Court (Appellete Side)
Balaram Mahato & Ors vs Khitish Chandra Mahato & Ors on 3 January, 2023
03.01.2023
SL No.7
Court No.8
(gc)
SAT 1360 of 2005
Balaram Mahato & Ors.
Vs.
Khitish Chandra Mahato & Ors.
None appears on behalf of the appellants.
The appeal is of the year 2005. In view of our
earlier order dated 14th December, 2022, we propose to
consider whether the second appeal involves any
substantial questions of law.
The appellate decree dated 12.10.2004 affirming the
judgment and decree of the Trial Court dated 21.11.2003
in a suit for declaration of title and injunction is a subject
matter of challenge in this second appeal. The suit was
decreed on contest. The First Appellate Court upheld the
order. The plaintiff claims to be the owner of C.S. Plot
No.135 measuring 30 decimals of land including other
plots mentioned in 'Kha' Schedule belonged to Fakir
Mahata and Ajodhya Mahata in equal share. It is stated
that an amicable settlement was arrived at in the year
1929 in between the two brothers in respect of 'Kha'
Schedule under C.S. Khatian No.36. Both the brothers
died much before the initiation of R.S. operation. Upon
the death of Fakir his sons Kailash and Baburam
inherited the property. Similarly, Chunaram and Sarat
inherited the property of Ajodhya. In view of amicable
partition in the year 1929, Kailash and Baburam got
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possession of their respective lands and since then they
were enjoying the respective demarcated portion of their
land for their own use and enjoyment. After the death of
the aforesaid persons their legal heirs were brought on
record. R.S.R.O.R were accordingly revised.
According to the plaintiff Sabek C.S. Plot No. 135
measuring about 37 decimals including other plot of land
under the said C.S. Khatian is mentioned in Scheduled
'Kha' of the plaint appertaining to C.S. Khatian No.36 and
the land of other Moujas previously belonged to Fakir and
Ajodhya in equal shares and subsequently both the
brothers by an amicable partition in the year 1929
separated the properties in metes and bounds in respect
of 'Kha' Scheduled Property under C.S. Khatian No.36 and
other properties amongst the two brothers. R.S. have been
prepared according to the partition that had taken place
in the year 1929 in the name of Kailash and Baburam
sons of Fakir in respect of some plot of land and some
other plots of land have also been recorded separately in
the name of Chunaram and Balaram. C.S. Plot No.135
measuring 37 decimal has been build up as R.S. Plot
No.135 measuring 32 decimal in the name of Kailash and
his brother Baburam and Plot No.135/48 measuring 5
decimal in the name of Kailash and his brother Baburam
and other C.S. Plot have been recorded in the name of
Baburam and Chunaram in terms of the earlier partition
effected in the year 1929. Accordingly R.S. Plot No.135,
Khatian No.36/1 measuring about 32 decimal was
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recorded in the name of Kailash and Baburam exclusively
during the R.S. operation. Out of the aforesaid area 6 ¼th
decimal of land had been transferred by Kailash and
Baburam in favour of defendant No.4, 5 and 6 and
remaining 25 ¾th decimal of land is the suit property
mentioned in scheduled 'Ka' for which declaration of title
and injunction has been prayed for by the legal heirs of
Kailash and Baburam against legal heirs of Sarat and
Chunaram.
The defendant contested the suit disputing the
partition. The plaintiffs filed the R.S.R.O.R and C.S.R.O.R
that were marked as Ext. 1 and the
defendants/appellants have filed the L.R.R.O.R. that were
marked as Ext. A to A(5) in order to ascertain whether
R.S.R.O.R. or L.R.R.O.R. finally published is correct. The
parties were examined and cross-examined extensively.
D.W.1 in his cross-examination stated that during C.S.
Operation, the names of Fakir and Ajodhya were recorded
in equal share. They are the original owner/possessor in
respect of the suit plot with other plots. Since after C.S.
Operation, the said two brothers namely Fakir and
Ajodhya mutually separated and partitioned their
property in equal share. In Cross-examination dated
29.01.2003
, the D.W.1 has stated that they did not raise
any complaint or objection before any authority in respect
of R.S.R.O.R. regarding the suit property. This witness,
D.W. 1 virtually supports the case of the plaintiffs and
they did not raise any objection regarding R.S.R.O.R.
Before the First Appellate Court it was argued that the
L.R.R.O.R. which has been finally published should be
taken to be correct and L.R.R.O.R. shall prevail over the
R.S.R.O.R.
On the other hand, the plaintiffs submitted that
R.S.R.O.R should prevail over L.R.R.O.R. It was also
argued that the oral partition was valid in law before 7th
June, 1965. In the instant case, the partition having
taken place in the year 1929, the factum of oral partition
cannot be denied. It appears that this fact of oral
partition has also been supported by D.W.1 in cross-
examination. R.S.R.O.R. and L.R.R.O.R. are not
document of title but a document of possession and when
there is a recognition and acceptance of an oral partition
before 1st July, 1965, there cannot be any reason to
disbelieve the C.S.R.O.R and R.S.R.O.R. In view thereof
the entry in L.R.R.O.R. cannot be said to be in conformity
with the entry made in R.S.R.O.R. Accordingly, the entry
in L.R.R.O.R. does not create any title in favour of the
defendants. Both the Courts have found that from the
R.S.R.O.R. that there has been early partition amongst
the co-sharers before R.S. Operation and as per partition,
R.S.R.O.R. has been prepared separately and from that
very document, it can be safely presumed that there was a
partition. After considering all the aspects of possession
and documentary evidence, the learned Trial Court
decreed the suit rightly on sound reasoning.
Both the Courts have found that the plaintiffs are in
possession having good title over the suit property. In
view of Section 51(A) W.B.L.R. Act, the L.R.R.O.R. has less
evidentiary value, if it is made erroneously or baselessly.
Thus, it appears that the plaintiffs have good title and
possession in respect of the suit property.
On the basis of such concurrent findings of facts
based on proper appreciation of evidence and the relevant
statutes, we do not find any substantial questions of law
on which the second appeal can be admitted.
Accordingly, the second appeal stands dismissed at
the admission stage.
However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
