BALAL CHANDRA MONDAL Vs. INDUREKHA DEBI

JUDGEMENT

(1.) This appeal by certificate is from a judgment and decree of the High Court at Calcutta passed in favour of the plaintiff-respondent Indurekha Debi (hereinafter referred to as Indurekha) after reversing a judgment and decree of the learned Subordinate Judge of Zillah Nadia who had dismissed the plaintiff-respondent's suit against the defendant-appellant. The short facts of the case are as follows. One Umesh Chandra Banerjee who was the father-in-law of the plaintiff-respondent held a Mokarari Mourashi Jama recorded in Khatian No. 3 of Mouza Narsinghapur and Khatian No. 50 of Mouza Gayespur also known as Mathurapur. The Jama was sold in execution of a rent decree in November 1939 and was purchased by Indurekha in the Benami of Smarajit Kumar Bhattacharyya (hereinafter referred to simply as Smarajit). Some time in October 1943, Smarajit executed in favour of Indurekha, a deed of voluntary sale of the jama. Two years before this sale, in August 1941, an amalnama or a deed of settlement was executed by one Anadi Charan Chakrabarti creating a raiyati interest in favour of the present appellant over 106 bighas of land at an annual rent of Rs. 145-12 as. The appellant claims that Anadi executed the deed of settlement as the authorised manager of Indurekha. Indurekha's case is, however, that neither she nor Smarajit who was her name-lender before had on any occasion permitted their manager to make a settlement and that the settlement in favour of the appellant was fraudulently created by one Annada Prasad De and Anadi Charan Chakrabarti acting in collusion with the appellant. Indurekha filed a suit on 3 August, 1953 in the Court of the Subordinate Judge at Krishnagar asking for a declaration that the fictitious settlement created in favour of the appellant was void and also asking for a decree for possession of the suit property and mesne profits. The appellant contested the suit and in the written statement denied the title of Indurekha to the land in dispute.

(2.) According to the appellant it was Smarajit first and then Indurekha's husband Panchu Gopal who were the owners of the land in suit so that Indurekha could have no cause of action against the appellant. He further claims that after taking a settlement of the land he has been in ownership and possession of the land first under Smarajit and "at present under the plaintiff as a settled raiyat". Various issues were settled for determination by the learned subordinate judge, only two of which were raised in the appeal before this Court namely :

(3.) The decision in this case must turn round the question as to whether Anadi had any authority to settle the land with the appellant. Admittedly no written authority for giving such settlement is in existence. There have been attempts on the part of the appellant to show at the time of trial that Anadi used to collect rents and used to manage the estate of Smarajit as well as of Indurekha. Even assuming that Anadi did so and had the authority to do so, we do not see how he could dispose of the property and give a substantial area of land in raiyati settlement to the appellant. We asked the learned counsel for the appellant again and again to show us some evidence, either oral or documentary, which would show that Anadi had authority to dispose of the property of Indurekha. Learned counsel, however, failed to do so. He asked us to infer from the fact that Anadi had been in management of this land before and after the plaintiff came into possession of it that he had the necessary authority to give an Amalnama in respect of the land. We see absolutely no justification for making such an inference.