Ratan Chakraborty And Ors. vs Monoranjan Ghosh And Ors.

This is a second appeal preferred by the original defendants challenging the legality and propriety of the judgment and decree dated 04.11.2016 passed by the learned District Judge, Gomati District, Udaipur in case No. Title Appeal 20 of 2015 allowing the appeal preferred by the plaintiff- respondents reversing the original dismissal decree dated 19.11.2015 passed by the learned Civil Judge, Junior Division, Udaipur, Gomati in Title Suit no. 06 of 2012.

Briefly stated, the plaintiffs, the respondents herein, had instituted a suit for confirmation of possession and perpetual injunction over the suit land. The plaintiffs have stated in their plaint that the defendant-appellants (here- in-after referred to as the defendants) had been disturbing the peaceful possession of the plaintiffs over the suit land. After institution of the suit and on completion of the exchange of pleadings, the learned trial court proceeded to decide the suit exparte. The plaintiffs adduced evidences and on the basis of the evidences, the learned trial court dismissed the suit. Being aggrieved, the plaintiffs preferred appeal before the learned first appellate court. Before the learned first appellate court, the defendants appeared after receipt of the notice. they had contested the appeal and after hearing the parties and on perusal of the evidences and materials on record, the learned first appellate court decreed the suit in favour of the plaintiffs confirming their possession and perpetually restrained the defendants not to interfere with the peaceful possession of the plaintiffs over the suit land. Hence, the present second appeal preferred by the defendants.

At the time of admission of the appeal, the following substantial question of law was framed:

(i) Whether the judgment and decree passed by the Appellate Court suffers from perversity for non-appreciation of the material evidence;

Mr. Sengupta, learned counsel at the very first instance has drawn my attention to the fact that the defendants had approached the revenue authority under Section 95 of the TLR & LR Act for correction of entry recorded in the khatian showing the plaintiffs as permissive possessor and after hearing the learned revenue court dismissed the plea of the plaintiff- defendants and rejected the claim of the defendants for correction of record which was recorded in the name of the plaintiffs as permissive possessor. Mr. Sengupta, learned counsel has admitted that the defendants did not adduce any evidence and the revenue court has also rejected his claim to correct the Record of Right but, that was not done. Mr. Sengupta, learned counsel has referred to Section 45(A) of the TLR & LR Act where it is stated that before entering any name of the person in Record of Right, the revenue authority is under obligation to inquire the true entry of the land and who is the real possessor of the land but, in that case it has not been done.

I repel the submission of the learned court. The provision of law is correct, but, in the instant case, as I have said earlier that the defendants have failed to adduce any evidence that before recording the name of the plaintiffs showing his name as permissive possessor in the Record of Right, the revenue authority did not conduct any inquiry. Furthermore, in the proceeding under Section 95 of the TLR & LR Act, the revenue authority has confirmed the possession after a threadbare discussion over the suit land.

Now, the question remains whether the findings of the first appellate court is perverse.

I have gone through the judgment. It is found that the defendants did not adduce any evidence. The settled position of law is that entry of a person in the Record of Right in whichever nature it is, it will draw a presumption in favour of that person whose name has been entered in the Record of Right. That presumption has to be rebutted by the person who denies or disputes such entry in the Record of Right by cogent evidence. If he fails to adduce any evidence, then, the presumption will go in favour of the party/person in whose name the Record of Right is created.

Having observed thus, I do not find any infirmity in the judgment of the first appellate court. Accordingly, the judgment and decree passed by the first appellate court is hereby affirmed and upheld.

Draw the decree accordingly. Send down the LCRs.