P.N. Mookerjee, J.
1. This appeal is by defendants 15 to 22 and it arises out of a suit for declaration of title and partition; in the alternative, for recovery of a sum of Rs. 9,000/- by way of refund of purchase money and damages from defendants 10 and 11. The learned Additional Subordinate Judge, 6th Court, Alipore, who tried the suit has passed a preliminary decree for partition accepting the plaintiff's claim of title to the extent of a 7 annas 6 pies share of the disputed properties. He has dismissed the plaintiff's alternative claim for recovery of the purchase money and damages.
2. Defendants 15 to 22, who contested the plaintiff's title to the suit properties and set up 16 annas' title in themselves, have preferred the present appeal.
3. The facts giving rise to the present litigation may be shortly stated as follows:
(4) One Rahamatulla left two sons, Enayetulla and Abdulla. Enayetulla died leaving two widows, Ajimannessa (senior) and Ajimannessa (junior), a sou Efajuddin and a daughter Kadabanu by the senior wife Ajmannessa Bibi, and a sun Mokshed and three daughters, Humidan, Sahidan and Rahidan, by the junior wife Ajimannessa Bibi. Kadabanu, Hamidan and Sahidan are dead, so also is Ajimannessa (senior), as also Elajuddin. The latter died leaving two sons Arshed and Nauser and three daughters Keshida, Mokshuda and Rashida. These sons and daughters of Elajuddin are defendants 1 to 5 of the present suit and defendants 15 to 22 claim to have purchased the suit properties in 16 annas from them.
5. Of the branch of Enayetulla through Ajimannessa (junior), Hamidan and Sahidan are dead and Mokshed is defendant 6 and Rahidan defendant 7.
6. The plaintiff claims title to a 7 annas 6 pies share of the suit properties through the branch of Abdulla. Abdulla left two sons, Tamijuddin Molla and Menajuddin Molla. Tamijuddin is defendant10. Menajuddin is dead and he died leaving a widow Nurjan who was defendant 9 and a son Abdur Rashid alias Abdul Rashid Moola who is defendant11. These two defendants 10 and 11 are the vendors of the present plaintiff.
7. During the pendency of the suit, Menajuddin's widow Nurjan, defendant 9, died and also Nauser defendant 2, the latter leaving a widow Sayrajan and a son Ahmed Ali and a daughter Foyzannessa, who were made respectively defendants 12, 13 and 14 in the suit.
8. The plaintiff claims to have purchased 7-1/2 annas of the suit properties from defendants 10 and 11 by a kobala, dated 27-8-1947, which is Ex. 3 in the case. Defendants 15 to 22 claim to have purchased 16 annas of the suit properties by four koba-las, viz., Exs. B to B-3, dated 24-7-1940 (Ex. B1), 16-4-1942 (Ex. B), 21-11-1942 (Ex. B3) and 18-5-1943 (Ex. B2), from the several defendants, defendants 1 to 5, who were Efajuddin's legal representatives at the time. Mokshed claims title to a portion of the suit properties upon the allegation that the said properties belonged to Enavetulla and, upon his death, they devolved upon the two branches of his heirs through his two widows Ajimannessa (senior) and Ajimannessa (junior)
9. According to the plaintiff, the suit properties were the ancestral properties of the two brothers Enayetulla and Abdulla and, from two members (defendants 10 and 11 of Abdulla's branch, as already stated, the plaintiff purchased their 7 annas 6 pies share of the same.
10. In support of his case the plaintiff primarily relied upon the settlement records. In the relevant settlement khatian, which is Ex. 2 in the present case, the suit properties were recorded in the names of Efajuddin, Ajimannessa, Mokshed, Rahidan, Tamijuddin, Abdur Rashid and Nurjan and the total share of Tamijuddin and Abdur Rashid was Stated to be 7 annas 10 gandas that is, 7-1/2 annas which the plaintiff claims to have purchased by his kobala Ex. 3. Tt is on this basis that the present suit was instituted by the plaintiff for partition of his 7-1/2 annas or 7 annas 6 pies share of the suit properties and there was, as we have already said, an alternative claim for refund of the consideration money of Rs. 8,700/- of the kobala, Ex. 3, with damages, the total claim in that behalf being laid at Rs. 9,000/-
11. The suit was contested by defendants 15 to 22 and also by defendant 6 on the strength oftheir alleged titles as indicated above.
12. The learned Additional Subordinate Judge accepted the plaintiff's case on this question of title and passed a preliminary decree for partition in his favour.
13. The principal document, upon which the fate of the plaintiff's suit, so far as title and partition is concerned, really depends, is a deed of release, Ex. D, which was executed by his vendors Tamijuddin and Abdul Rashid, along with the latter's mother Nurjan as far back as 14-9-1938. In that deed of release (Ex. D) which was executed in favour of Efajuddin's branch (which eventually came to be represented by the vendors (defendants 1 to 5) of the present appellants (defendants 15 to 22), it was-expressly stated that the executants, namely, Tamijud-din, Abdul Rashid and Nurjan, 'never had nor have any sort of title or possession' in inter alia the two C. S. Dags Nos. 404 and 405 which are the subject-matter of the present suit and that the entry in the settlement record (Ex. 2) recording their names in respect of the said dags was 'absolutely incorrect.' It is not necessary for our present purpose to refer to any other portion of the said deed of release, Ex. D.
14. Defendants 15 to 22 relied, in particular, upon this deed of release (Ex. D) for the purpose of showing that the plaintiff's claim of title to any share of the suit properties was entirely unfounded. The learned Additional Subordinate Judge, upon the view that 'title to land cannot pass by admission' and that a mere deed of release would not be effective to pass such title, rejected the said defendants* contention and, having held that the release (Ex. D) was insufficient to pass title, he finally concluded that the presumption of the settlement recorded (Ex. 2) in the plaintiff's favour had not been rebutted, and, in that view, he decreed the plaintiff's claim for partition. As a necessary corollary the plaintiff's alternative claim for refund and damages was dismissed.
15. The propriety of the learned Subordinate Judge's view that the release (Ex. D) was of no avail to the appellants, upon which his whole judgment, is based, is challenged in this appeal and Mr. Apurbadhan Mukherjee, appearing for the defendants-appellants, has contended that, although it is quite true that a mere deed of release would not defeat or extinguish title to land, that principle would apply only where there was some such title vested in the executant or executants of the deed of release, but, in the present case, there being no proof that the executants of the deed of release (Ex. D) had ever any title to the suit properties, that deed Ex.-D would not be bit by the above principle of law. He has further contended that, in any event, the admission in the deed of release (Ex. D) that the executants thereof bad no title or possession in the two relevant C. S. Dags Nos. 404 and 405 and that the settlement entry to the contrary was incorrect was clearly relevant, -- and sufficient also in the facts of this case, -- to rebut the presumption of the settlement record (Ex 2), recording the names of those executants in respect of the said Dags.
16. We have given the matter our best consideration and we think that there is considerable force in the above submissions of Mr. Mukherjee and they should be accepted. We shall presently give our reasons for this view.
17. It may be conceded -- and, indeed, there can be no dispute on the point, -- that the settlement record (Ex. 2) would raise a presumption that defendants 10 and 11 had title to a 7 annas 10 gandas or its equivalent 7 annas 6 pies share of the suit properties but that presumption would clearly be rebutted by the admission of the said defendants themselves in the deed of release, Ex. D, that the said entry was wrong and that they had no such title or possession in the suit properties. This will be quite a legitimate use of the deed of release (Ex. D) which will not contravene the decisions of this Court in the cases of Jadu Nath Poddar v. Rup Lal, Poddar, ILR 33 Cal 967 (A), and Dharam Chand Boid v. Mon-ji Shahu, 16 Ind Cas 440 (1) (B), or the later case of Mathura Mohan Saha v. Ram Kumar Saha, ILR 43 Cal 790: (AIR 1916 Cal 136) (C), or the principles, enunciated therein, that title or title to land does not pass by admission when the statute requires a deed of transfer and that a mere release is ineffective to pass title. The use of the admission, for the purpose of rebutting the presumption of the settlement record would not be to use it to pass or extinguish title and this is certainly not using the deed of release (Ex. D) as a document of title, either creating or extinguishing or transferring title to land. Such use would not be hit by any of the above decisions or the earlier decision of the Privy Council in the case of Mt. Oodey Koowur v. Mt. Ladoo, (1870) 13 Moo Ind App 585 (CD, where stress was laid on the. distinction between a mere release on the one hand and a conveyance or a contract to convey on the other.
18. To explain ourselves we would add a few lines.
19. The settlement record is not a document of title. It does not create or extinguish title to land. At the most, it may be relevant as some evidence of title to the recorded Dags and may raise a presumption of title by virtue of the statutory presumption of correctness attaching to its entries under Section 103B (5) Bengal Tenancy Act. Such evidence, however, is rebuttable and so also the presumption and they may be effectively rebutted by production of contrary evidence. An admission by the party (in whose favour the settlement entry stands) declaring that he had or has no title or possession in the disputed property and that the settlement entry to the contrary effect in his favour is incorrect, save where such admission can be explained. Or shown to be wrong, usually binds him and it is normally the best evidence against him on the point: vide Rani Chandra Kanwar v. Narpat Singh, 34 Ind App 27 at pp. 35-36 (D), and it is certainly relevant and ordinarily quite sufficient to rebut the presumption of correctness of the record of rights. The so-called presumption of title which entirely rests upon the presumption of correctness of the settlement record would therefore go as a necessary consequence and the khatian entry as evidence of the party's title would be practically valueless as against his own contrary admission. There is no question of transfer or extinction of title which presupposes an existing title. The question is of proof or disproof of title and rebuttal of the evidence inthat behalf, furnished by the Record of Rights. For that purpose the admission is certainly relevant andin the normal course of things it ought to prevail over the Record. Ex. D, therefore, would rebut the Settlement Khatian (Exhibit 2) in the present case.
20. It is thus clear that, on the question of title, the plaintiff can derive no assistance from the Record of Rights (Ex. 2) and, there being no other evidence (barring some highly interested and/or worthless oral testimony, utterly unworthy of credit), on which the plaintiff's claim of title can be supported, that claim must be rejected. We, accordingly, bold that the plaintiff, on the materials before the Court has failed to establish his title to any share of the suit properties and his present suit, so far as it is for declaration of title and partition, must fail.
21. The above view is not opposed to Narak Lal v. Thagoo Lal, 13 Ind Cas 455 (E), where, apart from the fact that the release was a suspicious document, there were various circumstances and materials to be considered on the question of title and for such consideration the case had to be remanded to the lower appellate Court. That case, therefore, is clearly distinguishable.
22. We are not called upon in this case to pronounce upon the respective rights of the contesting defendants (defendant 6, representing Enayetulla's branch through Ajimannessa (junior), including the said lady herself, and defendants 15 to 22, claiming through his other branch, represented by defendants 1 to 5) as between themselves and it is enough for our present purpose to dismiss the plaintiff's claim for declaration of title and partition. In the suit there was no prayer by any of these defendants for declaration of their title inter se or partition. They merely prayed for dismissal of the plaintiff's suit. It also appears that a separate suit for partition has been instituted by Mokshed (defendant 6) in which defendants 15 to 22 have been impleaded. In these circumstances, we do not deem it proper -- and it is certainly not necessary in this case, -- to say anything on the rival claims of the said defendants inter se and we make no observation on the point.
23. It is necessary now to turn to the plaintiff's alternative claim for refund of the consideration money of his kobala, Ex. 3, namely, Rs. 8,700/- with damages to the extent of Rs. 300/- as claimed in the plaint, the total figure being Rs. 9,000/-. This claim, as we have already said, was made against the plaintiff's vendors, defendants 10 and 11. In the kobala, Ex. 3, there is a clear provision that, if the title conveyed thereby be found to be defective, the purchaser, namely, the present plaintiff, would be entitled to refund of the entire consideration money of Rs. 8,700/- together with interest and compensation for all losses and damages whatsoever. There was no doubt some defence set up by the vendors, defendants 10 and 11, to this part of the plaintiff's claim to the effect that the whole amount of the consideration money (Rs. 8,700/-), as mentioned in the kobala (Ex. 3), had not been received by them, but we are not impressed by the evidence, adduced in support of that defence, in the kobala (Ex. 3) we find an endorsement of the Sub-Registrar that Rs. 5,800/- was paid in his presence. We also find that the balance amount, namely, Rs. 2,900/-, was paid to the vendors, defendants 10 and 11, under a separate receipt, Ex. 5, on the date of the Baina, 21-8-1947. In thesecircumstances and in the light of the evidence which has been adduced in this case, we are inclined to hold that there was full payment of the entire consideration money of Rs. 8,700/- of the kobala, Ex, 3, by the plaintiff to his vendors, defendants 10 and 11 and that the plaintiff is entitled, in the events which have happened, to a refund of the said amount.
24. We also hold that, in the circumstances of this case and in view, particularly, of the express provision in the kobala, Ex. 3, to that effect, the plaintiff is further entitled to interest or damages, but, as the claim in that behalf was limited in the plaint to the sum of Rs. 300/-, we are unable to allow him anything more on this account.
25. The plaintiff, therefore, will be entitled to a decree for a total sum of Rs. 9,000/- as against defendants 10 and 11 on his alternative claim and his suit should stand decreed to that extent. Order 41, Rule 33, Civil P. C. contains sufficient warrant for the making of this decree in the present case and we feel amply justified in applying the said provision for the facts before us.
26. In the result, we allow this appeal, set aside the preliminary decree for partition, passed by the learned Additional Subordinate Judge, as also thedeclaration of title, made by him in the plaintiff's favour, and dismiss the plaintiff's claim in that respect, namely, his claim for partition including his claim of title to the suit properties, but we grant him (the plaintiff) a decree for a sum of Rs. 9,000/-against defendants 10 and 11 Tamijuddin Molla and Abdur Rashid Molla who are respondents 11 and 12 in this appeal, on his alternative claim for refund of the purchase money and damages. The decree of the learned Additional Subordinate Judge is varied and modified accordingly.
27. In the circumstances of this case, we are also inclined to give the plaintiff his costs against defendants 10 and 11 in the Court below and we order accordingly. Defendants 15 to 22 will get their costs in the Court below from the plaintiff. They will also get half the paper book costs incurred by them in this Court from the plaintiff respondent. Except as stated above, the parties will bear their own costs in this Court and also in the Court below.
Renupada Mukherjee J.
28. I agree.