PRABHATI RAI Vs. NONI SIKDAR

JUDGEMENT

(1.) It is plaintiff's second appeal, as a non concurrent judgment which has been rendered by the Court of Additional District Judge, Khatima District Udham Singh Nagar in Civil Appeal No. 14 of 2018 Noni Sikdar and Others vs. Prabhati Rai; by virtue of which the defendants' appeal was allowed and the learned trial court's judgment of 6/3/2018 passed by the court of Additional Civil Judge (Jr. Div.), Khatima, decreeing the suit of the plaintiff/appellant herein, being Suit No. 01 of 2009 Prabhati Rai vs. Noni Sikdar and Others has been set aside.

(2.) In fact, if this Court goes to the factual backdrop of the case, which was considered by the trial court in relation to the grant of decree of permanent injunction, as it was prayed for by the plaintiff/appellant in the aforesaid Suit No. 01 of 2009, it was in relation to Gata No. 549 presently Gata No. 719 (GaMin) having an area of 0.015 hectares, situated in Khatauni No. 411, which admittedly as per the revenue records is an "abadi land". It was submitted, that the plaintiff, and the predecessor of the plaintiff, were in possession of the plot and they came up with the case, though without there being any document on record, that the same was allotted to the plaintiff. The plaintiff in support of his contention had adduced oral testimony of P.W. 1, P.W. 2 and P.W. 3, but unfortunately to prove the factum of title and possession, the plaintiff has adduced a gift deed of 6/8/2003 i.e. Paper No. 8-Ga and a survey khatauni i.e. Paper No. 9 Ga and an application which was submitted before the Sub Divisional Magistrate on 20/1/2008 and the election voters list, family register etc.

(3.) Learned trial court exclusively based upon its finding, which has been recorded on the basis of the alleged philosophy of establishing the plaintiff's possession on the basis of PKa-10 entries as recorded in PKa-10, had decreed the suit for grant of decree of injunction on the ground, that the right over property was divested by virtue of will of 6/8/2003. The simple analogy is that if the Land Record Manual, is taken into consideration under which the entries under PKa-10 are prepared, they are contemplated under Para 89-A, which is a "mushtarka entries" prepared by the Revenue Officials, for each Kharif and Rabi years by the Lekhpal. In fact, those entries are nothing but retrieving of the records of changes of right, which has been brought about in the village, during the aforesaid Kharif or Rabi years. The exclusive entries thus made in Form No. P-10 under the Revenue Law, cannot be taken as to be a solitary basis or a document of possession over the property because it is only a partali entries and not an exact spot verification report.