Calcutta High Court (Appellete Side)
Unknown vs Smt. Sudha Ghosh & Ors on 14 January, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI
S.A.T. No.412 of 2013
Biswanath Chongdar & Ors.
... Defendants/Respondents/
Appellants
- Versus-
Smt. Sudha Ghosh & Ors.
... Respondents Mr. Mahindra Prasad Gupta, Mr. Swadhin Pan, Mr. Ayan Mitra ... For the Appellants Mr. Anirban Bose, Mr. Rajat Mitra ... For the Respondents Heard on : 31.07.2018, 07.12.2018 and 14.12.2018.
Judgment on : January 14, 2019.
Sahidullah Munshi, J.:-
This appeal by the defendants is against the judgment and decree dated 8th July, 2013 passed by the learned Additional District Judge, Arambagh, in Title Appeal No. 5 of 2012 reversing the judgment and 2 decree dated 17th May, 2012 passed by the learned Civil Judge, Jr. Division, First Court at Arambagh in Title Suit No. 30 of 2007. Title Suit No. 30 of 2007 filed by the plaintiffs Smt. Sudha Ghosh and Smt. Bijola Chongdar against Sri Biswanath Chongdar and 16 others, praying for declaration and permanent injunction.
In short the plaintiffs' case is that their names were recorded in the L.R. Record-of-Rights in respect of the suit land comprised in a pond named 'Boro Pukur' originally comprised of 2.06 Acres but the defendants declared that since their names were not so recorded in C.S. and R.S. Record-of-Rights publication of their names in the L.R. Record-of-Rights was wrong and erroneous and have acquired no right and interest for such wrong recording. The plaintiffs made out a case that their predecessors-in- interest were pardahnashin and since they used to reside at their matrimonial home they reposed faith and responsibility of recording their names in the C.S. and R.S. Record-of-Rights on the predecessor-in- interest of the defendants. The said predecessor-in-interest of the defendants fraudulently recorded their names in respect of the entire property. After coming to learn the fact that their predecessors-in-interest were not recorded in the R.S. and C.S Record-of-Rights, the plaintiff got the records rectified in the L.R. Record-of-Rights. As a result the plaintiff sought for declaration and permanent injunction against the defendants. The defendant nos.1 to 7, 12, 13, 14, 15 and 17 contested the suit by filing written statements. The defendant nos. 8 to 10 were proforma defendants and filed written statements supporting the case of the 3 plaintiffs. The defence case of all the defendants is that the L.R. R-O-R was previously recorded in the name of the predecessors-in-interest of defendant nos. 1 to 4 and the defendant nos. 5 to 6 Anil Kr. Chongdar and Bijoy Krishna Chongdar respectively and in the name of the defendant no. 7 in respect of 1/3 share. But later the husband of the plaintiff no. 1, Sri Ajit Kr. Ghosh and brother-in-law of plaintiff no.2 who is the husband of defendant no.9, Abhay Ghosh surreptitiously in connivance with the Settlement Office recorded the names of the predecessor-in-interest of the defendants in the L.R. Record-of-Rights. The defendant nos. 1 to 7 stated that the suit property in dag no. 467 i.e. 'Boro Pukur' originally comprised of 2.06 sataks belonged to three brothers Natabar, Mrigendra and Satish in equal share and their names were recorded in the C.S. R-O-R in Khatian No. 138. The defendant nos. 1 to 7 stated that Ramtarak Chongdar @ Tarakchand Chongdar was the predecessor-in-interest of the defendant nos. 1 to 7. During the life time of Natabar his only son Bankim died and thereafter said Natabar transferred 1/3 share in favour of his daughter-in-law Motibala, defendant no.7 vide Deed of Gift and said Mrigendra, Satish and Motibala recorded their names in R.S. and L.R. Record-of-Rights in respect of entire 2.06 sataks of land in dag no. 467 (Boro Pukur). After the death of said Mrigendra his 1/3 share devolved upon his son Bijay and after the death of Satish his share devolved upon his son Ajay. Thereafter, said Ajay, Bijay and Motibala recorded their names in respect of their 1/3 share. On the death of Bijay his 1/3 share devolved upon his two sons i.e. defendant no. 5 and 6. The share of Anil, 4 at his death devolved upon defendant no. 1 to 3 and Motibala transferred her 1/3 share to her daughter Manjusri Ghosh vide registered Deed of Gift dated 3rd April, 1970. The defendant no. 1 to 3 and said Manjusri Ghosh, defendant no. 7 transferred 06 sataks of land at the eastern side of the Boro Pukur at dag no. 467 to Samanta Khanda Paschim Dulepara Sishu Shiksha Kendra and they constructed four rooms. The defendant no.1 to 7 stated that the defendant no. 1 to 6 were in possession of 1.93 sataks of land in dag no. 467. The defendant no. 12 Manjushri Ghosh also admitted the case of defendant no. 1 to 7. The defendant nos. 13 and 14, secretary of the Samanta Khanda Paschim Dulepara Shishu Shiksha Kendra pleaded, inter alia, regarding their interest in respect of aforesaid 06 sataks of the land. The defendant no. 15, 16 and 17 in their written statement specifically stated that they obtained 04, 13, 13 sataks of properties respectively at the demarcated Southern side of dag no. 467 under Section 7 of Homestead Act and mutated their names in the settlement record. Therefore, according to the defendant the suit was liable to be dismissed.
The learned Trial Court on the pleadings of the parties framed the following issues:
1) Is the suit maintainable in its present form and prayer?
2) Is the suit bad for non-joinder of necessary of parties?
3) Is the schedule of the plaint is vague and imperfect?
4) Is the plaintiff entitled to get relief as prayed for? 5
5) To what relief, if any, the plaintiff is in law and equity entitled to?
On the issues being considered and discussed the Trial Court while considering the point of maintainability of non-joinder of necessary parties decided the issue nos. 1 and 3 in favour of plaintiff and disposed of the same accordingly. Thus it was held that the suit was maintainable and not bad for non-joinder of necessary parties. While deciding issue no.4 whether the plaintiff was entitled to get relief as prayed for, the Trial Court observed that since plaintiffs themselves claimed their right, title and interest on the basis of entry in L.R. R.O.R in favour of the predecessor-in- interest it is their duty to prove that the said entry has got some foundation. The Trial Court held that a revenue record is not a document of title. Ultimately, the Trial Court held that there was no basis and /or foundation of the entry which was made in the Record-of-Rights in favour of the plaintiffs. Therefore, the Trial Court dismissed the suit holding, inter alia, that since the plaintiff could not prove any right, title and interest over the suit property and since the so called L.R. Record-of-Rights is not based on any pre-existing right and interest subsequent interest and /or possession could not be claimed by virtue of the said Record-of-Rights. The said decision of the Trial Court was appealed against and the First Appellate Court after hearing the parties held that admittedly, the suit property originally belonged to predecessor-in-interest of the defendant and recorded their names in the C.S. R. O. R. and R.S. R.O.R and as a result whereof the said predecessor-in-interest became raiyat of the 6 property. Appellate Court also held that since the names of the predecessor-in-interest of the plaintiffs were inserted in 'possession' column in C.S. R-O-R and R.S. R-O-R the same was indicative that the plaintiffs' predecessor-in-interest were in possession over the suit property. Therefore, the plea taken by the defendants that such entry in favour of the predecessor-in-interest of the plaintiffs was wrongly recorded, does not hold good. The Appellate Court below held that although, the plaintiffs failed to prove any share of the property of their predecessor-in-interest but entry of their names in the possessory column in C.S. R-O-R and R.S. R-O-R gives a presumption of valid possession. On the basis of such Record-of-Rights the Appellate Court below held that the plaintiffs may not be entitled to get a decree of title of the property as per share recorded in L.R.R-O-R against the defendants but their possession in the property should be protected and since the Trial Court made a finding contrary to the Record-of-Rights the said finding cannot stand. Consequently the judgment and decree passed by the Trial Court has also been set aside and the appeal was allowed. While allowing the appeal the Appellate court set aside the judgment and decree dated 17th May, 2012 and 23rd May, 2012 passed by the Trial Court in Title Suit no. 30 of 2007. Although the Appellate Court declared that the plaintiffs have no right, title interest or any share in the property as recorded in L.R. R-O-R but held that the defendant cannot interfere with the possession of the plaintiffs without due process of law.
7
In the facts and circumstances of this case the second appeal was filed by the plaintiffs and the same was admitted on 8th May, 2014 on the following substantial question of law :
I. "When the plaintiff could not prove the title through the Record-of-Rights whether they would still be entitled to protection as prayed for.
II. Whether the First Appellate Court was right in ignoring the earlier Record-of-Rights being C.S. and R.S. record and relied on L.R. record particularly when the Trial Court examining the evidence held, the plaintiff could not prove their title".
Learned Advocate appearing in support of the appeal being S.A.T 412 of 2013 has argued that the plaintiff has filed a suit for declaration and permanent injunction within the permissible limit under Section 34 of the Specific Relief Act. He contends that if the plaintiff fails to prove any title over the property, the suit should fail. Consequently the plaintiff is also not entitled to any order of injunction and according to him the judgment and decree passed by the learned Trial Court dismissing the suit ought not to have been interfered with in appeal by the learned First Appellate court below. According to the learned Advocate appearing for the appellant the Appellate Court bellow has exercised its jurisdiction not vested with him under the law in passing the order of injunction when the plaintiff could not prove his right, title and interest over the suit 8 properties. He further contends that the plaintiff has filed the suit only on the basis of some erroneous recording. According to him the L.R. Record-
of-Rights cannot justify grant of a relief of injunction when the plaintiff in the trial could not show anything as to on what basis the plaintiffs' names were so recorded in the L.R. Record-of-Rights. Learned Advocate further submitted that Record-of-Rights is not a document of title, therefore, the same cannot be relied at all for a final relief under Section 34 of the Specific Relief Act, 1963, He submitted that since the Record-of-Rights does not create any right, title and interest and the plaintiff when failed to prove the basis of such recording, on mere recording the plaintiff cannot have any case either for declaration or for injunction. He specifically submits that in absence of the title to the property the suit failed and even the Appellate Court below was wrong in passing an order of injunction when the plaintiff has failed to prove his title based on any documentary proof. According to him mere Record-of-Rights is not sufficient to grant an order of injunction. In support of such submission on behalf of the defendants, he refers to the following decisions:
• Union of India and Ors. -Vs.- Vasavi Cooperative Housing Society Limited and Ors., reported in (2014)
2 SCC 269;
• State of Andhra Pradesh and Ors. -Vs.- Star Bone Mill and Fertiliser Company, reported in (2013) 9 SCC 319;
9• Ratan Chand and Ors. -Vs.- Mori (dead) by L.R.S. and Ors., reported in (2010) 11 SCC 768;
• Santosh Hazari -Vs.- Purushottam Tiwari (deceased) by L.R.S, reported in (2001) 3 SCC 179; and • Gopi Krishna Rout -Vs.- The State of Jharkhand decided on 19th January, 2018 in W.P.(C) No. 665 of 2011 (unreported judgment delivered by Jharkhand High Court).
Relying on Vasavi Cooperative Housing Society Limited (supra) the learned Advocate for the appellant has contended that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for grant of such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. This proposition is a settled proposition of law and there is no conflict with the same. But the issue involved in the present second appeal is different. It is different in the sense whether the Appellate Court was justified in granting relief of injunction in absence of title being established by the plaintiff, therefore, without going into the question whether or not the plaintiff has to succeed only on the strength of his own case and not the weakness of the defendants in a suit for declaration and title and possession the facts involved in the case are to be taken into consideration. The fact involved in the present case is not identical with 10 the facts in the reported decision cited by the appellant, therefore, this report has no bearing on the present case.
The decision in Star Bone Mill and Fertiliser Company (supra) the Hon'ble Apex Court has been pleased to discuss threadbare the consequences of a person having long term possession over a land even in absence of any proved title which I will discuss later on.
Ratan Chand (supra) has been cited by the learned Advocate for the appellant to argue that the Appellate Court should not interfere with the finding of the Trial Court, which finding is based on evidence. According to the appellant the First Appellate Court has committed illegality in reversing the finding arrived at by the Trial Court and granting order of injunction contrary to what has been found by the Trial Court. This proposition advanced by the appellant cannot be accepted inasmuch as the First Appellate Court has also got authority to re-appraise the evidence on record. The First Appellate Court being the last fact finding Court in exercise of its power under Section 96 of the Code of Civil Procedure can go into the evidence and come to a conclusion whether or not the Trial Court correctly appreciated the evidence on record. Therefore, the argument advanced by the learned Advocate for the appellant cannot be accepted.
The next decision in Santosh Hazari (supra) cited by the learned Advocate for the appellant is contrary to the principle laid down in the previous decision in Ratan Chand (supra) the learned Advocate perhaps 11 has not followed the ratio of the judgment in the decision in Ratan Chand (supra) and in Santosh Hazari (supra).
The decision in Santosh Hazari (supra) is primarily based on the ratio that High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal. And if it does so it acts illegally and in abnegation or abdication of the duty cast on the Court. The existence of substantial question of law is a sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. The said decision has also enunciated that while reversing a finding of fact the Appellate Court assigns its own reasons for arriving at a different finding. An additional obligation has been cast on the First Appellate court below by the scheme of the present Section 100 substituted in the Code. According to the Hon'ble Apex Court the First Appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immuned from challenge before the High Court in second appeal. The contention of the learned Advocate for the appellant that the First Appellate court was reversing the decision of the Trial Court has not provided sufficient reason in support of the reversal so made. On a careful scrutiny of the judgment of the First Appellate court it appears that the Appellate court reversed the finding of the Trial Court on a different footing and such reasoning supports reversal which gets support to some extent from the judgment in the case of Star Bone Mill and Fertiliser Company (supra) where the Hon'ble Apex Court held that "presumption of title as a result of possession, can arise only where facts 12 disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. In fact, it means, that if at any time a man with title was in possession of the suit property, the law allows the presumption that such possession was in continuation of the title vested in him". In the present case, if it is considered that the plaintiff has failed to prove their pre-existing title through their predecessor but they have been able to prove their possession by virtue of the Record-of-Rights and, in fact, the entry in the current Record-of-Rights (L.R. R-O-R), which is a finally published Record-of-Rights, can give an undisputed presumption of possession in favour of the plaintiffs. This presumption unless rebutted by sufficient evidence, cannot be held to favour the case of the defendants that the plaintiff is not entitled to protect in law, his recognized possession over the suit property. Therefore, in my view the learned First Appellate Court below has committed no wrong in holding that the possession of the plaintiff should be protected even if he failed to prove his predecessor's title in the property. The learned Courts below have also held that the previous recording in R.S and C.S. Record-of-Rights also gave a presumption of possession in favour of the plaintiffs. Therefore, such law of presumption has to be drawn under Section 114 of the Indian Evidence Act, and the same has not yet been rebutted by the defendants. Once it is proved that the Record-of-Rights are authentic and genuine, the plaintiffs are entitled to get advantage of Section 114 of the Evidence Act that such 13 entry in the Record-of-Rights has a natural consequence which gives a presumption of possession in favour of the plaintiff. This cannot be disturbed by any means, meaning thereby the Appellate court's findings that the possession of the plaintiff should not be disturbed and in my view this finding cannot be said to be an erroneous and illegal finding so that the same can be interfered in this second appeal.
The last decision cited by the learned Advocate for the appellant in Jharkhand High Court's case in Gopi Krishna Rout (supra) is also on a settled principle of law that mutation does neither create nor extinguish any right or title in favour of any one or other. This proposition is a settled proposition of our Court also. The Hon'ble Apex Court has decided time and again that Record-of-Rights can neither create any right nor extinguish any right but the important factor which is to be considered in this case whether the plaintiff has right to possess the property on the basis of lawful Record-of-Rights prepared in their favour by any authority of law and Court has a duty to protect such possession. Possessory right is also a recognized right in India and such presumption is provided under Section 114 of the Indian Evidence Act. This possessory right and the presumption of possession for a long time can even destroy the right of a lawful owner if no action is taken by the lawful owner to correct the Record-of-Rights which according to him is erroneous and erroneously published in the name of a person who has no right and/or authority over the land in question. However, the defendants claimed that such entry in the Record-of-Rights was a wrong recording and based on no title. It was 14 the duty of the defendant who claims it to be the owner of the property to vindicate his grievances before the authority which prepared the Record- of-Rights and which published it final under the provision of West Bengal Land Reforms Act. There are so many stages in the preparation of the Record-of-Rights. Only after disposal of the objection filed by the interested persons the revenue authorities published final Record-of- Rights in the instant case. Evidence shows that not only the L.R. Record- of-Rights was prepared in the name of the plaintiff but other previous records, e.g. C.S. and R.S. Record-of-Rights were also prepared and published in the names of the predecessors of the plaintiffs. Despite those recording it cannot be said that the plaintiffs have no manner of possession by virtue of those Record-of-Rights or that they have no right to maintain the possession over the said property.
The learned Advocate appearing for the respondent in this appeal (S.A.T. 412 of 2013) has contended that the judgment and decree impugned in the appeal cannot be held to be illegal; the same is based on sound principle of law. He submitted that possession of the plaintiff over the suit property is rather admitted in view of the Record-of-Rights being published in the name of the plaintiffs with the knowledge of the defendants.
In support of his submission he has placed the following judgments for consideration of this court.
15
• Shri Raja Durga Singh of Solon -Vs.- Tholu and Ors., reported in AIR 1963 SC 361;
• Nair Service Society Ltd. -Vs.- K. C. Alexander, reported in AIR 1968 SC 1165;
• Mahabir Pandey and Ors. -Vs.- Sashi Bhusan Dubey and Ors., reported in AIR 1981 Calcutta 74;
• Gitabala Dashi @ Gita Rani Dashi -Vs.- Sri Fatik Ruidas, reported in 2013(1) CHN (Cal) 211;
• Mogilipuvvu Annapurnaiah -Vs.- Malampati Narasimha Rao and Anr., reported in AIR 1982 Andhra Pradesh 253; and • Rame Gowda (dead) by L.Rs. -Vs.- Varadappa Naidu (dead) by L.Rs. and Anr., reported in AIR 2004 SC 4609.
In the decision of Shri Raja Durga Singh (supra) the Hon'ble Apex Court held that where the entries in the Record-of-Rights have been relied on and there is a conflict between them it is the later entry which will prevail. Relying on this judgment the learned Advocate appearing for the respondent submits that it is the later entry on the basis of which the Appellate Court has passed the order of injunction and therefore, there 16 should not be any difficulty with the order impugned. The said decision has got direct impact on the case at hand.
In the decision Nair Service Society Ltd. (supra) cited by the respondent is on the question whether a party can claim adverse possession and what are the principles underlying the claim for adverse possession. The judgment is based on Article 64 and 65 of the Limitation Act and is of no help to the respondents here.
The decision in Mahabir Pandey (supra) the Hon'ble Apex Court while dealing with the question of conflict with regard to the entries in the Record-of-Rights under C.S. and R.S. Khatian held that R.S. Khatian being later has to be presumed to be correct. So, this decision is identical with the decision in the case of Shri Raja Durga Singh (supra) and therefore, favours the contention of the respondents.
In Gitabala Dashi (supra) a single judge of this Hon'ble Court while dealing with a decree passed by the Courts below declaring title and confirmation of possession considering the C.S. and R.S. Record-of-Rights held that the plaintiff has failed to rebut the presumption of the entries in R.S. Record-of-Rights. Therefore, this decision is also identical with the decision in the case of Shri Raja Durga Singh (supra) and this helps the respondents.
In Mogilipuvvu Annapurnaiah the Division Bench of Andhra Pradesh High Court while dealing with the question of juridical possession of a tenant who is a tenant at sufferance held that possession of such a 17 tenant by sufferance (juridical person) should be protected by the Courts in our country.
The decision in the Rame Gowda (supra) the Hon'ble Apex Court dealing with the question of grant of injunction in a suit under Section 38 of the Specific Relief Act where the plaintiff sought for a decree for restraining the defendant from interfering with his peaceful settled possession, held that the plaintiff is entitled to protect his possession and grant of injunction in such a case would be proper. This decision squarely covers the case advanced by the respondent/plaintiff in the present appeal. In the said decision the fact which is involved is related to a suit property, a piece of land and in respect of which, plaintiff and defendant both claimed to be owning the adjoining pieces of land. There was a dispute as to the exact dimensions and shapes (triangular or rectangular) of the pieces of lands claimed to be owned and possessed respectively by the two parties. The real dispute, it seems, is about the demarcation of the boundaries of the two pieces of lands. However, fact remains, and that is relevant for the purpose in the said case that the piece of land which forms the subject-matter of the suit, was in possession of the plaintiff/respondent. The plaintiff/respondent was raising construction over the piece of land in his possession and that was obstructed by the defendant/appellant claiming that the land forms part of his property and was owned by him. The plaintiff filed a suit alleging his title as also his possession over the disputed piece of land. The trial Court found that although, the plaintiff had failed in proving his title, he had succeeded in 18 proving his possession over the suit property which he was entitled to protect unless dispossessed therefrom by due process of law. On this finding the trial Court issued an injunction restraining the defendant/appellant from interfering with the peaceful possession and enjoyment of the plaintiff/respondent over the suit property. The defendant in that suit contended, inter alia, that if the suit is based on title and if the plaintiff failed in proving his title, the suit ought to have been dismissed without regard to the fact that the plaintiff was in possession and whether the defendant had succeeded in proving his title or not. The Hon'ble Apex Court found no merit in both these submissions so made. The Hon'ble Apex Court, ultimately, held that:
"... so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession, he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injunction even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser 19 from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
However, from the said decision of the Hon'ble Apex Court it is apparent that the possession is meant by the settled possession or effective possession of a person. Once it is a settled possession, the possessor has every right under the law to protect his possession unless he is evicted by due process of law. The said decision is a Special Bench decision of the Hon'ble Apex Court and the facts involved in the said case are identical with the case at hand. Therefore, there is no reason to hold that the ratio of the said decision is not applicable in our case. In the present case, the learned Judge in the Appellate Court below mentioned in its judgment:
"It is admitted fact that suit property originally belonged to predecessors-in-interest of the defendants and recorded their names in C.S. R-O-R and R.S. R-O-R. So, it is an admitted fact that the predecessors-in-interest of the defendants were the owner of the property and their names entered in R.S. R-O-R indicated they became Raiyat of the property. It is also a fact that the predecessors-in-interest of the plaintiffs have been inserted in possession column in C.S. R-O-R and R.S. R-O-R indicated predecessors-in-interest of the plaintiffs were in possession in the suit property."20
In order to better understand the scope of the suit and the reliefs prayed for in the said suit, it is necessary to take note of the provisions of Section 34 of the Specific Relief Act, 1963 which deals with declaratory decrees. The provisions of Section 34 of the Specific Relief Act, 1963 are set out below:
"S. 34. Discretion of Court as to declaration of status or rights. - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation. - A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."
The opening words of Section 34 says - any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying his or her title to such character or right and the Court, in its discretion, can give declaration that the plaintiff is so entitled. The term 'legal character' is very important in this case and is of wide connotation. 'Legal character' means the status. It means a position recognized by law. If a person's name is recorded in the finally published Record-of-Rights, law gives a presumption within the meaning of Section 114 of the Evidence Act that the person in whose name the Record-of- 21 Rights has been published finally, is in possession of the property. Such possession is a recognised possession and right to be in occupation of the property follows from such Record-of-Rights which has got a presumptive value in the eye of law that he is in peaceful possession over the property. Such presumption shall continue to be followed by all persons unless the presumption is rebutted by any contrary evidence. Onus lies on the person who alleges such possession to be incorrect or illegal. Therefore, if the defendant agitates that the plaintiffs have no manner of possession over the suit property by virtue of the Record-of-Rights so prepared in their names, this would be their first and foremost duty to lead evidence that the plaintiff's possession recognized by the Record-of-Rights by the Revenue Authorities are erroneous and they should have either filed a proceeding for correction of the Record-of-Rights or they could have also filed an objection against such erroneous Record-of-Rights, by filing objection or even the defendants could have filed a separate suit for a declaration that the plaintiffs have not acquired any right, title and interest by virtue of the said recording and for other consequential remedy or they could have also prayed for injunction in such a suit. But where it is undisputed that the defendants have never disputed the entries in the Record-of-Rights whereby the plaintiff's possession has been recognised by the Revenue Authorities by publication of final Record-of-Rights and more surprisingly, when the defendants have not led any evidence to prove that such recording was illegal and not binding on them, in my view, the defendants have failed to discharge their onus and, therefore, they are 22 bound by the presumption under the Record-of-Rights so prepared in the name of the plaintiff. It is not always necessary that without title there cannot be possession for a party under the recognized Indian law. Even a party can have valid right to possess a building without proving that he is the owner of the property. The possession may be of different types of possessions need not to be held to be illegal since it is only found that the possessor has no manner of right, title and interest in the property. Therefore, Record-of-Rights being a legally recognized right to possess, the learned Appellate Court below cannot be held to have passed any illegal order by granting injunction against the defendant in the suit filed by the plaintiff and more so, when the plaintiff has been able to establish that their possession over the suit property is in existence continuously for over a long period of time, in my view, they are entitled for permanent injunction. In a way, even if for any reason they were not entitled for the declaration of title on the basis of continuous possession, they were entitled for the decree of permanent injunction.
Therefore, if this factual position remains unaltered that a possession in the possessory column was recorded in favour of the plaintiffs since C.S. R-O-R and R.S. R-O-R, it is sufficiently indicative that at some point of time the plaintiffs' predecessors had possession over the suit property way back in 1925-26 when the C.S. R-O-R were prepared and following such noting R.S. R-O-R was also prepared and which at least shows the possession undisturbed, effective and settled possession of the plaintiffs in respect of the suit property for a long time, if not, ripened 23 into a title but there is no justification to disturb such possession as on date. Therefore, in my view, the learned Judge in the Appellate Court below has committed no illegality in recognizing such a long settled possession of the plaintiffs and in holding that such a settled possession should not be disturbed and, therefore, he was compelled by his conscience to protect such legally recognised possession. In my view, the learned Judge in the First Appellate Court below has rightly passed the decree in favour of the plaintiffs on the question of possession holding, inter alia, that the plaintiffs are entitled to protect their possession and the defendants must be restrained from disturbing such a settled possession.
I, therefore, find no merit in the appeal.
The appeal fails.
There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)