1. This appeal arises out of a suit for a declaration of title and confirmation of possession and in the alert native for recovery of possession. The plaintiff's case briefly was that he had purchased this land from defendant 3 by a kobala dated 16th September 1923 and after his purchase he had been receiving rent from defendant 4 who was actually in possession of the house and was his tenant. But since then defendant 1 had induced defendant 4 to pay rent to him. Defendant 1 who contested the suit contended that he had purchased the property from defendant 2 and that defendant 2 derived his title under a deed of gift of the property executed in his favour by defendant 3. The trial Court held that there had been a valid deed of gift by defendant 3 to defendant 2 and therefore as defendant 3 had at the time of the plaintiff's purchase no title to the property the plaintiff had acquired no title to the property by his purchase from her; so he dismissed the plaintiff's suit. The plaintiff appealed to the District Court. The learned Subordinate Judge who heard the appeal would seem to have come to the finding that defendant 3 never really executed a deed of gift in favour of defendant 2. He would seem to find that defendant 3 when she executed this document was under the impression that she was executing a power-of-attorney and that she did not realize that what she was executing was a deed of gift, He held that the document was taken by misrepresentation and undue influence and that defendant 2 had practically practised fraud, misrepresentation and undue influence on defendant 3 in getting the deed of gift executed whereas she intended to execute a general power-of-attorney. One would perhaps think that these findings were sufficient to dispose of the case even though perhaps the findings of undue influence, fraud and misrepresentation were somewhat contradictory. The learned Subordinate Judge, however, goes on further to find that as there was no acceptance of the gift the gift was void. This finding is perhaps unnecessary in view of what he has already found. He goes on further to find somewhat unnecessarily that the gift being a conditional one and the donee not having performed the condition when defendant 3 has subsequently sold the land to the plaintiff she has evidently revoked the gift.
2. Mr. Pal who appears for the appellant has first of all contended that the suit was barred by limitation. He contends that the period of limitation applicable to the present suit is as provided in Article 91, Lim. Act. The plaintiff, he contends, cannot succeed in his suit unless he first of all sets aside the deed of gift and as the deed was executed more than three years before the institution of the suit. The suit was out of time. In support of his contention the learned vakil relies upon the case of Harihar Ojha v. Dasarathai Misra  33 Cal. 257 with special reference to the remark of Woodroffe, J., at pp. 265 and 266 where the learned Judge states as follows:
There can be no doubt that when a person seeks to recover property against an instrument executed by himself or one under whom he claims he must first obtain the cancellation of the instrument, and that the three years' rule enacted by Article 91 applies to any suit brought by such person. The reason why a party seeking to recover property against his own instrument must show that it is voidable or void, as for instance for fraud, is that, as long as an instrument creating a later title is valid his former title cannot prevail.
3. Mr. Pal argues on the strength of this decision that the plaintiff's suit must fail. No doubt this decision lends considerable support to the contention of the learned vakil. As a matter of fact, however, the decision of that particular point which I have just referred to was not necessary, as far as can be seen, for the decision of that particular case ; and therefore to that extent the decision must be considered as obiter. On the other hand the case of Sanni Bibi v. Siddik Husain  23 C.W.N. 93 a decision directly in point, it has been held that when it is established that the plaintiff by defendant's misrepresentation was induced to execute a deed of sale believing the same to have been a deed of a different kind the transaction is void and not voidable only, and Article 91, Lim. Act has no application to his suit to recover the property. It will be seen that that decision is directly in point, because in this case the plaintiff sues as the transferee of defendant 3 and stands in her shoes. Defendant 3 was induced by the misrepresentation of defendant 2 to execute a deed of a different kind to what she thought she was executing. It has been found that she thought that she was executing a power-of-at tourney when she was really executing a deed of gift. A further support to the case of the respondent would be found in the case Petherpermal Chetty v. Muniandy Servai  35 Cal. 551 a decision of the Privy Council. On p 659 of the report Lord Atkinson in delivering the judgment of the Judicial Committee remarks:
As to the point raised on the Limitation Act 1877, their Lordships are of opinion that the conveyance of 11th June 1895, being an inoperative instrument, as in effect, it has been found to be, does not bar the plaintiff's right to recover possession of his land and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims.
4. If I understand this decision the Judicial Committee held that where the instrument was inoperative it was not necessary to set it aside as a preliminary to his obtaining a decree for possession. The document before us is obviously an inoperative instrument. It purports to be a deed of gift whereas it is really nothing of the sort, because the person who executed it was under the impression that she was executing not a deed of gift but a power-of-attorney. The same principle has been laid down by the Bombay High Court in the case of Narsagounda v. Chawagounda  42 Bom. 638 with special reference to p. 657 a decision of the Full Bench which follows the Privy Council case already referred to reported in  33 Cal. 257. This point, therefore, seems to be concluded by authorities, and must be decided against the appellant.
5. The next point argued on behalf of the appellant is that the plaintiff should not be allowed to make a case different from the case set out in his kobala. In the kobala under which the plaintiff claims certain references were made to the deed of gift and the plaintiff or rather his vendor there apparently gave a different version about this deed of gift. The appellant contends that it is not open to the plaintiff to make out any different case whatever in the plaint. Whether the case made in the plaint differs materially from the case made in the kobala is not necessary to be determined. It is obviously open to the plaintiff to make out any case that he chooses in the plaint. The fact that the case made in the plaint does or does not differ from the case as would appear in the document on which he relies would obviously be a point to be taken into consideration by the Court in considering the truth or falsity of the plaintiff's case. But there is nothing to prevent him from making out any case he wishes to make. Whether he could substantiate it is quite another question.
6. The next point urged by Mr. Pal is that the plaintiff is now estopped from saying that there is no legally valid gift and that defendant 3 did not execute a deed of gift, because, he states, that the plaintiff in his kobala referred to the deed of gift and therefore it is not open to him now to say that defendant 3 never executed any deed of gift. I entirely fail to understand how this statement in the plaintiff's kobala that defendant 3 executed a deed of gift can in any way stop the plaintiff from saying that there is no deed of gift. It has not been shown to us, nor was it ever alleged before the case came up here in second appeal that defendants 1 and 2 were in any way influenced or misled by the statement in the kobala. In fact there is no suggestion defendants 1 and 2 ever saw the statement in the kobala before defendant 1 purchased the property from defendant 2. The only suggestion made by the learned vakil for the appellant is that they might have seen it. Clearly that is not sufficient to create an estoppel.
7. The appellant has lastly contended that the learned Judge in the Court of appeal below was wrong in saying that:
under the circumstances no presumption of defendant 2's possession can be based upon it (the Record-of-Rights).
8. Now it appears that in the Record-of-Rights one plot is shown in the possession of defendant 2 and the other plot is shown in the possession, of the landlord. It was no doubt the case of defendant 1 that defendant 2 was in possession of both the plots. There is no doubt that the Record-of-Rights raises a presumption in favour of defendant 2 so far as regards the one plot which has been recorded as in the possession of defendant 2. Defendant 1 no doubt has challenged the correctness of the Record-of-Rights so far as regards the other plot recorded in the name of the landlord, but for that reason it cannot be said that no presumption arises in favour of defendant 2 in respect of the other plot which has been recorded in his name the correctness of which has not been challenged by defendant 1. It is not the whole Re-cord-of-Rights but each entry of the Record-of-Rights with respect to which the presumption of correctness arises. The words used in Section 103-B, Ban. Ten. Act are:
Every entry in a Record-of-Rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct.
9. What is presumed to be correct is each entry and not the whole Record-of-Rights. In this respect no doubt the learned Subordinate Judge has fallen into an error. I do not think, however, that for this reason alone we should send back the case to him for a consideration of the question of possession after taking a. proper view of the presumption as regards the entry in the Record-of-Rights, for the learned Subordinate Judge seems to have gone into this question of possession of defendant 2 independently of the Record-of-Rights and have found on the evidence that defendant 3 had been in possession all along. He has found that:
the evidence leaves no room for doubt that defendant 3 was all along living in the house and also admittedly was in possession after the execution of the deed.
10. I do not therefore think that it is necessary to send the case back to the learned Subordinate Judge for abiding on the question of possession.
11. The result is the appeal must fail and is dismissed with costs.