Manash Nath Roy, J. - (1.) This appeal is directed against the judgment and decree dated March 21, 1967 passed in Title Appeal No. 773 of 1966, by Sri K. K. Sarkar, Additional District Judge, 11th Court. Alipore, affirming thereby the judgment and decree dated March 31, 1966, made by Sri Raghabendra Banerjee, Subordinate Judge, 5th Court , Alipore, in Title Suit No. 30 of 1964.
(2.) Although in a second appeal of the present nature findings of fact are not open for challenge, in this case however the lower appellate Court in arriving at such findings did not give effect to the presumption arising out of the entries in the Record of Rights and as such the findings of fact became open for challenge in this appeal in view of the Privy Council decision in the case of Shankar Rao v. Shambhu Wallad, 45 CWN 57. Accordingly we are considering facts as we do in Appeals from Original Decrees.
(3.) The plaintiff respondent No. 1 (hereinafter referred to as the plaintiff) on or about May 25, 1964, brought Title Suit No. 30 of 1964 against the defendant-appellants (hereinafter referred to as the defendants), for declaration of title, recovery of possession and mesne profits in respect of 3 cottas of homestead land with an one storied building standing thereon and as recorded in R. S. Plot No. 1673 of Khatian Nos. 703/1 and 667/7 of Mouja Naihati (hereinafter referred to as the suit properties). It was the case of the plaintiff that originally a plot of land measuring more or less 6 cottas was taken settlement of by Md. Reza from the erstwhile Mitra landlords (hereinafter referred to as the Mitras) in the year 1929. According to the plaintiff out of the said 6 cottas of land, the said Md. Reza demised 3 cottas in the northern portion in favour of Abdul Khalek Ansari (hereinafter referred to as the Khalek) on August 21, 1929 at a rental of Rs. 15/- per year and built a one-storied building thereon. That the said Khalek in his turn on May 8, 1930 obtained a Mourasi Mokarari Patta in respect of 2 cottas of land out of the said 3 cottas from some of the superior Mitra landlords and thereafter he continued to possess the same till his death in the early part of 1950 without any obstacle or obstruction from anybody and after the death of the said Khalek, his 3 sons, a widow and his mother inherited the said properties. The plaintiff's further case is that due to communal riots, the heirs of the said Khalek kept the disputed house under lock and key and shifted elsewhere and thereafter they sold the suit properties by a registered Kobala dated February 9, 1953 (Ext. 2) for valuable consideration to the plaintiff and transferred all their rights, title and interest in the same to him. It has also been stated that in the meantime some persons broke open the lock and entered into the suit properties as a result whereof the plaintiff had to move the competent authority under the provisions of Rehabilitation of the Displaced Persons and Eviction of Persons in Unauthorised Occupation of Land Act, 1951 (Act XVI of 1951), for the purpose of ousting the trespassers and after a protracted proceeding got back possession of the entire property on February 3, 1962, when the last of the trespassers left. The plaintiff then kept the house on lock & key but on the following date the defendants forcibly broke open the padlock and wrongfully trespassed into the suit property. After failing to get back possession in a proceeding under Section 145 Cr. P. C. the plaintiff had to file the above suit.;