- (1.) Today the learned Advocate for the appellants has completed his submissions. The learned Advocate for the contesting respondents has made his submissions and completed the same.
(2.) This Court now proceeds to pass the following judgement: The plaintiffs-appellants filed a suit for declaration of title, confirmation of possession and for permanent injunction. The plaintiffs' case was that the suit property originally belonged to one Surendra Nath Basu and on the death of said Surendra Nath Basu, his five sons namely Harendra, Narendra, Birendra, Dhirendra and Dwijendra inherited the said suit property in equal 1/5th share. The plaintiffs' further case was that their father, Mohammad Mondal, took settlement of the Schedule 'ka' and Schedule 'kha' property in tenancy right from the said five sons of Surendra Nath Basu at certain annual rent and the said Mohammad Mondal executed and got registered a kabuliyat dated 16.1.1948 in favour of the aforesaid landlords and Mohammad Mondal had been in possession of the Schedule 'ka' and Schedule 'Kha' property during his life time as a tenant under them. The plaintiffs' case was that said Mohammad Mondal died leaving behind his wife and the plaintiffs as his only legal heirs but subsequently the said wife of Mohammad Mondal died and the plaintiffs inherited her share. The plaintiffs' case was that said Birendra Nath Basu by taking undue advantage of the plaintiffs' helplessness got the suit property recorded in their names and the R.S. Record of Rights in respect of the suit property is erroneous. It further appears that said Harendra Kumar Basu and his three brothers filed a Title Suit No. 121 of 1966 in the Court of the learned 10th Subordinate Judge, Alipore for partition against said Birendra Nath Basu. It also appears that the plaintiffs and the predecessor-in-interest were parties in the said partition suit as noted in the judgement of the learned Trial Court and the said partition suit was decreed finally. The plaintiffs' case was that on the basis of the R.S. Record of Rights of the suit property the defendant Nos. 1 and 2 threatened the plaintiffs that the plaintiffs will be dispossessed from suit property and hence the plaintiffs filed the said suit. It appears from the judgment passed by the learned Trial Court that the defendant Nos. 1 to 3 contested the said suit by filing written statement denying all the material allegations made in the plaint and they contended that the suit property along with other properties belonged to said Birendra Nath Basu and his four brothers and said Birendra Nath Basu permitted the plaintiffs' father to possess the suit property by way of cultivation and orally delivered the possession of the suit property in favour of said Mohammad Mondal. The case of the aforesaid contesting defendants was that the said Mohammad Mondal possessed the suit land for some years and after the death of said Mohammad Mondal the said Birendra Nath Basu, the predecessor of the said defendants, took the suit property in his khas possession and continued to possess the suit land by way of cultivation ousting the plaintiffs from the suit land and such suit land had been recorded in the R.S. Record of Rights in his name accordingly. The case of the said defendants was that after the death of said Birendra Nath Basu the defendants have been possessing the suit land as his legal heirs and as such the defendants have acquired a good and valid title of the suit land by adverse possession.
(3.) The aforesaid suit came up for final hearing and the learned Trial Court by its judgement and decree dated 29.3.1993 decreed the said suit by declaring the plaintiffs' title in the suit property and the plaintiffs' possession in the suit property was confirmed. The defendants were permanently restrained from disturbing the plaintiffs' possession in the suit land. The learned Trial Court found that the plaintiffs have examined the P.Ws. 1 to 3 to prove their possession in the suit land and all such witnesses have strongly supported the plaintiffs' possession in the suit land and the learned Trial Court did not find any reason to disbelieve such oral evidence. The learned Trial Court further was of the opinion that the plaintiffs have successfully rebutted the presumption of the R.S. Record of Rights by bringing on record documentary evidence like three Dakhilas, a kabuliyat and the certified copy of the final decree in the aforesaid partition suit being Title Suit No. 121 of 1966. It further appears that an issue with regard to the res judicata was raised in the said Title Suit but after discussing the said issue the learned Trial Court was of the opinion that the suit was not barred under the principles of res judicata,;