P L D 1960 Dacca 429 (PLP)

Abu Md. Abdullah for Appellant. Md. Ayazuddin for Respondent. This appeal arises out of a suit for confirmation of possession on the ground that the principal defendant in collusion with the pro forma defendants threatened to dispossess the plaintiffs in Chaitra, 1355 B. S., with respect to the disputed plot No. 210/489, although the plaintiffs were in exclusive possession of the same by right of inheritance.

2. The defence, inter alia, was that the principal defendant took a patta from the co‑sharers of the plaintiffs on or about the 22nd December, 1921, and plaintiff No. 1, being an identifier as also a witness in regard to the said document, was bound by the admissions made therein. It was also contended that the relevant entries in the C. S. Khatian were wrong and that the plaintiffs came with a false story to set up a title on the basis of such wrong entries in the C. S. Khatian.

3. The learned Munsif, on a reference to the relevant C. S. Map and the C. S. Khatain, took the view that the area in the disputed plot appeared to be larger than the area in the main C. S. Plot No.

210. He also found that the plaintiffs were not in exclusive possession as alleged and that, as such, the relevant entries in the C. S. records were wrong. In this view of the matter, the suit was dismissed.

4. On an appeal preferred by the plaintiffs, the learned Subordinate Judge held that, for want of a local investigation, the identity of the relevant plot in the patta, Exh. B, as set up by the contesting defendants, could not be connected with the disputed plot No. 210/489. It was also found that the plaintiffs were in exclusive possession and the defendants failed to rebut the pre sumption of correctness in regard to the relevant entries in the C.S. Khatian. In that view of the matter, the learned Subordinate Judge held that no question of limitation or adverse possession arose in the present case. The appeal was, accordingly, allowed on contest with costs. .

5. In this Second Appeal, the learned Advocate for defendant No. 1‑appellant contends that there was internal evidence to show that the relevant entries in respect of the disputed Plot No. 210/ 489 was wrong inasmuch as the share as recorded in the Khatian has been found to be not 4 annas and the area has been found to be different and discrepant. He also contends that the learned Subordinate Judge has not given any reasons in holding that no question of limitation or adverse possession arose in the present case. The learned Subordinate Judge has pointed out that no local investigation was taken out in the present case. It can hardly be denied that one who alleges against the correctness of the entries in the record‑of‑rights has got to prove that the relevant entries are wrong. The presumption of correctness, as available on the strength of section 103‑B (5) of the Bengal Tenancy Act, has got to be rebutted by the person who alleges against it. In this particular case, although the share of Miajan seems to have been recorded as 4 annas, yet other plaintiffs have joined with him in making similar claims, along with Miajan. Moreover, this incorrect recording as to the precise share of Miajan is a matter as between him and his sisters. Defendant No. 1 who claims through the other co‑sharers of Miajan can have no advantage by reason of such discrepancy in the C. S. Khatian, if at all. With regard to the possible difference in the area, as noted in C. S. Khatian 30, Exh. 2 (a), it seems that defendant No. 1 is not also sure as to what would be its precise area. In the written statements, it appears that he had stated the area to be about 1014 kathas which is neither equivalent to 12 decimals nor to 24 decimals. It is not also stated in the written statement as to whether, if C. S. Plot No. 210/489 were in the exclusive possession of the lessors of defendant No. 1, then what other plot fell to the share of Miajan or his sisters co -plaintiffs. It is not disputes; that the plaintiffs, as also the lessor of defendant No. 1, claimed on the basis of inheritance from one original owner. Be that as it may, the finding of the learned Subordinate Judge to the effect that the presumption as to the correctness of the entries in the relevant C. S. Khatian has not been rebutted is a finding of fact. It is not possible, without any material showing that the apparent size of the disputed plot in the C. S. Map is misleading, to hold that the area as recorded in the relevant C. S. Khatian is erroneous. The further finding that the plaintiffs were in exclusive possession of the disputed plot is also a finding of fact and, if they were in possession, as it has been found, then the question of limitation is hardly material in the present case. The learned Advocate for the appellant has also contended that Miajan having been an identifier with respect to the patta, Exh. B, should be deemed to have been bound by the statement made in the said document. No authority has been placed before me in support of the theory or proposition that an identifier is equally bound as the executant of a document by the statements made therein. I do not think it at all reasonable to hold that the identifier should be regarded as a co‑executant in this regard.

6. All the contentions, as advanced by the learned Advocate for the appellant, therefore, fail. In the result, this appeal fails and is dismissed with costs. K.B.A Appeal dismissed.