- (1.) The instant appeal from the appellate decree is from the judgment dated 14.6.90 and the decree thereof passed by the Additional District Judge, 1st Court, Barasat in the District of 24-Parganas (N) through which the learned appellate Court below dismissed the appeal (T.A. No. 251 of 1988) and affirmed judgment and decree passed by Munsif, 2nd Court, Barasat in T. S. No. 480 of 1973.
(2.) The plaintiff/respondent brought the suit for declaration of title and permanent injunction, inter alia, contending that the properties described in Schedule 'ka' to the plaint measuring 13.15 acres of land in C.S. Khaitan No. 113 of Mouza Abarberia in P.S. Habra were the rayati properties of Chhepatulla Mondal, Joynal @ Joynur Bibi, Tahiran Bibi and Sarifan Bibi underthe landlords Jagat Prosanna Mukhopadhaya and others. The co-sharers/tenants amicably partitioned the properties amongst themselves and pursuant to such amicable partition, were duly recorded in C.S. Khaitan No. 113 indicating exclusive separate possession in respect of specific plots and ejmali possession in respect of some other plots. It was further alleged that Sarifan Bibi by an oral Heba transferred her properties described in Schedule 'kha to the plaint to her only daughter Tahiran and by virtue of such oral Heba Tahiran became the owner of 'kha' schedule properties and the said Tahiran started to possess the same. Tahiran Bibi died leaving behind 3 sons, namely Amir Ali, the plaintiff Meher Ali and Jahar Ali (defendant No. 1), 3 daughters, defendant Nos. 2 to 4. Meher Ali died leaving behind him his two wives defendant Nos. 5 and 6, his 2 brothers (plaintiff and defendant No. 1) and his 3 sisters, defendant Nos. 2 to 4. It was alleged that in the R.S. R.O.R. the suit property was not properly recorded indicating the actual shares of the heirs of Tahiran. It was alleged that the defendant No. 1 was entrusted with the responsibility of getting the properties properly recorded in R.S. R.O.R. Taking advantage of this trust defendant No. 1 got some erroneous entries made in the R.S. R.O.R. It was further alleged that in spite of such wrong entries, the plaintiff is in possession of kha schedule properties. The defendant No. 1 in collusion with the other defendants tried to dispossess the plaintiff. In that background, the plaintiff was constrained to file the suit praying for a declaration of his title in 'kha' schedule property and a decree for permanent injunction.
(3.) The defendant No. 1, defendant No. 2 and defendant No. 4 contested the suit by filing different written statements. It was mainly contended by the contesting defendants that the jama of C.S.Khatian No. 113 long extinguished and there was no existence of the same. Sarifan Bibi had transferred some of her properties to her grand son (defendant No. 1), some properties to her another grand-son Meher AM, and some properties to her son-in-law, Abbus Ali and some properties to her daughter, Tahiran Bibi. The plaintiff after his marriage went to reside at his father-in- law's place and acquired properties there from his father-in-law. In the R.S. R.O.R., the shares of the parties in the suit properties have been correctly recorded. The learned Munsif in his judgment has pointed out that the defendant No. 1's plea that he got the suit property by an oral Heba made by Abbas Ali Mondal was not true. He further held that the oral gift was not valid as per provisions contained in Section 26(c) of the Bengal Tenancy Act, the Act which was prevalent at the time of such alleged oral gift. Therefore, the plaintiff of the suit as one of the sons of the owner of the suit property Abbas Ali Mondal inherited the claimed share in the suiti property left by the said owner Abbas Ali Mondal and R.S. R.O.R. in respect of the suit property was erroneous. On such findings, learned Munsif decreed the Suit. By declaring plaintiffs right, title and interest over 1.44 acres of land in the 'kha' schedule property of the plaint and by restraining the defendants permanently from interfering with the peaceful joint possession of the plaintiff in 'kha' schedule property. The learned Appellate Court below found that the properties described in the schedule 'kha' to the plaint were the suit properties of the present suit. Admittedly those properties belonged to Sarifan and Tahiran jointly and after the death of Sarifan her share was inherited by her daughter Tahiran. The parties of the suit as heirs to Tahiran inherited the suit properties as per the respective share. The learned Judge further noted that it was also not disputed that the properties in 'ka' schedule of which 'kha' schedule properties was a portion, belonged to Sarifan, Tahiran and Chhepatulla and Jaynal Bibi. The defendants were unable to produce anything in support of their case that the said tenancy was lost and the fresh settlement was taken by the father of the plaintiff and defendants. In that background, the learned Appellate Court below further held it should be presumed that the tenancy as recorded in the C.S. Khatian continued and the right devolved upon the heirs of the recorded tenants in accordance with law. The learned appellate Court further observed that in the written statement, the contesting defendants had advanced a case of ouster and adverse possession. But no evidence was adduced during trial on their behalf and there was no pleading in their written statement as to how the plaintiff was ousted from the suit properties. The defendants merely tried to show that the plaintiff was not in the good book of his father and plaintiff used the reside at his father-in-law's place and as such he was divested of the suit properties. The learned Appellate Court noted that mere staying away from the suit properties even for more than statutory periof would not disentitle a co-sharer from his right over the suit property. So even if it was presumed that the plaintiff did not reside in the suit village or did not physically possess the suit property, that fact itself would not conclusively prove that his right in the suit properties was extinguished. The learned Appellate Court further pointed out that an argument was advanced on behalf of the plaintiff that the R.S. R.O.R. was prepared at the instance of the contesting defendants and the plaintiff was not aware of the entries in the R.S. R.O.R. But this fact was never proved by the plaintiff. On the other hand, the plaintiff in his evidence stated that he was possessing his property according to his share in the R.S. R.O.R. But the learned Appellate Court at the same time also recorded that on consideration of the entire evidence of the plaintiff as P.W.1, his solitary statement in his evidence that he was aware of the entries in the R.S. R.O.R and he was possessing the suit property as per R.S. R.O.R. should not be taken as an admission on his part. Specially when the defendants failed to prove that the plaintiffs interest in the suit property was extinguished. On such findings, the appellate Court below dismissed the appeal and affirmed the judgment and decree passed by the trial Court.;