SAMSHER DORJI Vs. CHAMMADALI DORJI

JUDGEMENT

(1.) This Second Appeal is, at the instance of the defendants, directed against a decree of reversal passed by the learned Lower Appellate Court. Briefly stated the case of the plaintiffs is that by a deed of conveyance dated 19-4-1938 one Golam Sopan Dorji purchased the disputed land from one Ashiruddin Sk. Upon the death of the said Golam Sopan Dorji the plaintiffs and the proforma defendants No. 5 to 7 inherited the said land and have been continuing in possession thereof. It is alleged that due to a mistake the disputed land was recorded in the name of one Osman Dorji instead of the said Golam Sopan Dorji in the R.S. Record of right. It is further alleged that the said R.S. Record is baseless; Osman Dorji did never have any right title interest or possession in respect of the disputed land. Further case of the plaintiff is that taking advantage of the aforesaid incorrect recording the defendants No. 1, 2 and 3 on 8-4-1977 threatened to dispossess the plaintiffs. The defendants No. 1 and 2 are the sons of the said Osman Darji since deceased and the defendant No. 3 is a transferee of the disputed piece of land from the defendants No. 1 and 2. The plaintiffs in the circumstances, claimed declaration of title and permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs. The defendants have denied all material allegations contained in the plaint.

(2.) The trial Court held that the plaintiffs are not in possessing; the entry in the R.S. Record of right is not incorrect and the suit is barred by limitation. Inter alia on the basis of the aforesaid the trial Court dismissed the suit. The trial Court assigned the following reason :-

(3.) The Lower Appellate Court held that the defendants had failed to prove adverse possession and therefore the irresistable conclusion was that the plaintiffs have their subsisting right title and interest in the land. In taking the aforesaid view, the Lower Appellate Court held that (a) R.S. Record of right should not be taken as a sacrosanct document; and (b) that there is no scope to come to the conclusion that Osma Dorji acquired title to the land in suit by continuous possession for more than 12 years.