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Pramatha Nath Mallia Vs. Radha Kishore Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal344
AppellantPramatha Nath Mallia
RespondentRadha Kishore Mukherjee and ors.
Cases ReferredBisseswari Koer v. Ram Protab Singh
Excerpt:
- .....a suit commenced by the plaintiffs for declaration of title and confirmation of possession in 15 bighas 8 kattas 9 chataks of land. there is also an alternative prayer for recovery of possession. there was also an allegation in the plaint that the plaintiffs had acquired title ly adverse possession. but the defence of the defendant was that the plaintiffs had no title to the property as it did not form part of village luchibad but it formed part of his mouza village mukandapore,2. the court of first instance decreed against the defendant on the question of title and dismissed the plaintiffs' suit holding that the plaintiffs were not in possession of the disputed parcels within 12 years before the suit.3. on appeal by the plaintiffs to the lower appellate court it came to the conclusion.....
Judgment:

Mitter, J.

1. This appeal is on behalf of the defendant and arises out of a suit commenced by the plaintiffs for declaration of title and confirmation of possession in 15 bighas 8 kattas 9 chataks of land. There is also an alternative prayer for recovery of possession. There was also an allegation in the plaint that the plaintiffs had acquired title Ly adverse possession. But the defence of the defendant was that the plaintiffs had no title to the property as it did not form part of village Luchibad but it formed part of his mouza village Mukandapore,

2. The Court of first instance decreed against the defendant on the question of title and dismissed the plaintiffs' suit holding that the plaintiffs were not in possession of the disputed parcels within 12 years before the suit.

3. On appeal by the plaintiffs to the lower appellate Court it came to the conclusion that 10 bighas 12 kattas 15 chataks of the disputed land appertained to. Luchibad and the remaining 4 bighas appertained to Khiraijuri which belonged neither to the plaintiffs nor to the defendant. On the question of possession the Court held that the evidence of possession was equally strong on both sides and as plaintiffs had made out their title to 10 bighas 8 kattas 12 chataks out of the disputed land the plaintiffs must be deemed to be in possession of the same. It is well established that where title is found with the plaintiff and the evidence of possession is equally balanced, possesssion must be presumed to follow that is what the Subordinate Judge really means although his finding on this point is not quite happily expressed.

4. It has been contended before us that a presumption on the question of possession should b9 raised in favour of the defendants on account of the entry in the Record of Rights as also by reason of an order made under the Survey Act of 1875 and the case of Bisseswari Koer v. Ram Protab Singh [1909] 14 C.W.N. 366 has been cited in support of that contention. The case is obviously distinguishable for in the case of Bisseswari Koer v. Ram Protab Singh [1909] 14 C.W.N. 366 there was no prayer in the alternative for recovery of possession.

5. In these circumstances we think that the findings of fact arrived at by the lower Court conclude this second appeal and this appeal is dismissed with costs.

6. There is a cross-objection which is not pressed. It is also dismissed.

Duval, J.

7. I agree.


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