TAPAN KUMAR DUTT, J. - (1.) THIS Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record.
(2.) THE facts of the case, very briefly, are as follows : The plaintiff/respondent filed Title Suit No. 126 of 2004 against the defendants/appellants and such suit was placed before the learned Civil Judge (Junior Division), Rd Court, Asansol. The plaintiff/respondent, in the said suit, prayed, inter alia, for a decree of declaration that the plaintiff is the absolute owner and possessor of the 'A' and 'B' schedule property mentioned in the plaint and that the defendants have no right, title and/or interest over the said property. The plaintiff further prayed for a decree declaring that the action of the defendants to encroach the said 'A' and 'B' schedule property is illegal, null and void and also a decree for permanent injunction restraining the defendants from entering, encroaching and possessing the said 'A' and 'B' schedule property. The defendants contested the said suit by filing a written statement. It appears that there is no dispute with regaRd to the fact that in the year l940, the defendants' predecessors had purchased 7 decimals of land in respect of Dag No. 775 at Mouza Majiara in the district of BuRdwan from one Smt. Haridasi Dasi and Sri Bholanath Ghosh. There is also no dispute with regaRd to the fact that the plaintiff had purchased 8 1/2 decimals of land in respect of the aforesaid Dag number from one Sadhan Ghosh and Ors. In the plaint it has been alleged that the 'A' schedule property is 6 sataks of land out of said total 8 1/2 sataks and the 'B' schedule property is 2 1/2 sataks of land and said 'B' schedule property is part and parcel of the 'A' schedule property. The learned Trial Court by its judgment and decree dated 30th June, 2007 decreed the said suit and declared that the plaintiff has right, title, interest and possession over 'A + B schedule property' and the defendants were restrained from encroaching the said 'A' and 'B' schedule property. Challenging the said judgment and decree passed by the learned Trial Court, the defendants filed Title Appeal No. 31 of 2007 which was placed before the learned Civil Judge (Senior Division), Asansol. The learned First Appellate Court by its judgment and decree dated 31st August, 2010 dismissed the said Title Appeal. 3. The defendants/appellants have filed the present Second Appeal challenging the judgment and decree passed by the learned First Appellate Court. The present second appeal was admitted for hearing on the following substantial questions of law by oRder dated 21st December, 2010 : "I. Whether the learned judges in the courts below, substantially, erred in law in passing the decree in respect of 8 1/2 decimals of land in favour of the plaintiff in not considering the pleadings of the plaintiff that 2 1/2 decimals of land in B -scheduled property is a part of 6 decimals of land in A -scheduled property? II. Whether the learned judges in the courts below, substantially, erred in law in holding that the defendants ought to have prayed for local investigation for identification of their land and in shifting the onus to prove the case for declaration in respect of immovable property mentioned in schedule "A" and "B" to the plaint on the plaintiff? III. Whether the learned judges in the courts below, substantially, erred in law in decreeing the suit relying on the oral evidence of the defendants and ignoring to consider that the plaintiff would be able to prove her case by adducing oral and documentary evidence, when the question of title over the land is involved? IV. Whether the learned judges in the courts below, substantially, erred in law in decreeing the suit by holding that the defendants failed to prove their claim in respect of the disputed land -
(3.) THE learned Advocate appearing on behalf of the defendants/appellants submitted that the learned Trial Court committed a gross mistake by decreeing the suit in favour of the plaintiffs in respect of 'A + B schedule property'. The said learned Advocate submitted that it will appear from reading of the plaint itself, particularly, the schedules described in the plaint, that 'B' schedule property has been described to be a part and parcel of the 'A' schedule property and the 'A' schedule property is only 6 decimals of land out of total 8 1/2 decimals. The said learned Advocate submitted that the evidence on record would show that the plaintiff has been totally confused with regard to the identity of the suit property itself. He has referred to the evidence of P.W. -1, i.e. the plaintiff herself, wherein the P.W. -1 has stated in cross -examination that it is true that the defendants' predecessor in interest had purchased his land prior to the purchase made by the plaintiff. It is also true that such portion of the defendants' land measuring 7 decimals have been fenced with boundary wall, as it is now, at the time when the plaintiff had purchased her property. It is also the evidence of the said P.W. -1 that she has constructed a boundary wall at the east of the purchased property about 3 to 4 years before she came to give evidence. Even though it is the specific case of the plaintiff that the 'B' schedule property is used as 'Khamar Bari', in evidence she has stated that the said 'Khamar Bari' is not within the purchased land of 8 1/2 decimals of land. The P.W. 2 has stated in his evidence that the land on the eastern side of the defendants' land is also used as 'Khamar Bari'. The said witness further submitted that he has not measured how much of land of the said 26 decimals falls on the eastern side and how much falls on the western side. It may be noted that the said P.W.2 is one of the vendors of the plaintiff and he has also stated that before selling out the land to the plaintiff, the vendors did not prepare any map for proper measurements. From the evidence of D.W. 3, it appears that he has stated that in between the houses of the plaintiff and the land of the defendants, there is no lane but from the cross -examination, it appears that he has stated that there is a 'gali' in between the houses of the plaintiff and the defendants. In the evidence the plaintiff herself stated that she has raised pucca construction within the 'A' schedule property measuring 6 decimals "keeping a passage measuring 117 feet in length and 5 1/2 feet in breadth by making boundary wall keeping a door facing towards 'B' schedule property and that the said 'B' schedule property is part and parcel of the 'A' schedule property.;