UNKNOWN Vs. PRADIP MAJUMDER

JUDGEMENT

(1.) The appeals being RSA 48 of 2016 and RSA 49 of 2016 were admitted by this court on 30.11.2016 on the common set of substantial questions of law which read as under :

(2.) The appeal being RSA 48 of 2016 emerges from the judgment dated 26.08.2016 delivered in T.A.01 of 2007 [Pradip Majumder v. Haripada Sarkar and Another] by the District Judge, Gomati Judicial District, Udaipur. The said appeal being T.A.01 of 2007 [under Section 96 of the CPC] was filed challenging the judgment dated 04.12.2006 delivered in T.A.05 of 2006 by the Civil Judge, Senior Division, Gomati Judicial District [formerly South Tripura Judicial District]. The said appeal was earlier dismissed by the judgment dated 01.08.2007 but the said judgment of the first appellate court was challenged in the appeal under Section 100 of the CPC being RSA 67 of 2008. By a common judgment dated 09.02.2016 delivered in RSA 36 of 2008, RSA 37 of 2008 and RSA 67 of 2008 were disposed of and the order of remand was passed by directing the first appellate court for deciding the first appeals afresh providing the due opportunity to the parties of being heard. By the judgment dated 09.02.2016, the first appellate court was directed to recast the issues on the basis of the pleadings and decide the appeals on merit. Even parties were given liberty to adduce additional evidence. A time-frame for disposal was proposed in the said judgment.

(3.) According to the plaintiffs of the suit, the suit land was purchased. One Hrishikesh Majumder [now deceased] and another Binode Ranjan Majumder [now deceased] had exchanged their land situated in the erstwhile East Pakistan with the legal representative of one Charu Gaji. According to the plaintiffs, Hrishikesh Majumder got 7.56 acre of land including the suit land. However, the deed of exchange was prepared in the name of mother of the defendant namely Mira Rani Majumder. Hence, the said property inclusive of the suit property was held by her in banami on behalf of her brother-inlaw, Hrishikesh Majumder. After death of Mira Rani Majumder, her legal representatives namely Tapan Majumder, Dulal Majumder and Pradip Majumder [sons] and Smt. Sandha Rani Majumder [daughter] executed a deed of release bearing No.1-1689 dated 30.04.1984 relinquishing their right, title and interest over the said property inclusive of suit land in favour of Hrishikesh Majumder. Hrishikesh Majumder died on 02.08.1993 leaving behind three legal representatives namely Mitra Majumder [wife], Priyo Darsha Majumder [son], Bhadra Majumder [Sengupta] [daughter]. They inherited the suit land. Those legal representatives sold out the suit land to the plaintiffs by the registered sale deed No.1-2493 dated 05.10.2004 and delivered its possession. During the survey settlement operation, the said land was recorded in the name of Mira Majumder on the basis of the deed of exchange. Some other persons claimed possession over that suit land and the dispute was settled amidst the proceeding being Misc. Case No.231 of 2005 under Section 145 of the Cr.P.C. According to the plaintiffs, by virtue of that settlement they were in possession and they used to grow paddy in the suit property. But when the suit was instituted, their name as the holder of the title was not mutated in the records of right, even though, they have been pressing for such mutation very hard. On the contrary, the defendant, the respondent herein by filing his written statement denied the story of possession by contending that Hrishikesh Majumder or his legal representatives never resided in the State of Tripura. They used to make occasional visits. The suit property was in the custody of the defendant's father namely Binode Ranjan Majumder, since deceased. After death of Hrishikesh Majumder, Priyodarshan Majumder who was also the attorney of other legal representatives of Hrishikesh Majumder entered in a agreement for sale regarding the entire immovable property with the defendant. Out of the settled consideration money being Rs.2,75,000/-, the defendant paid Rs.1,01000/- as the earnest money on 27.09.2000 and he got the possession over the entire immovable property including the suit land. Thereafter, on 26.06.2004 the defendant paid another sum of Rs.1,00,000/- to Priyadarshan Majumder at Kolkata and requested him to execute the sale deed on receiving the remainder of the consideration money i.e. Rs.75,000/-. But Priyadarshan Majumder refused to execute the sale deed and the defendant filed a suit for enforcing the said agreement to sale being. T.S.19 of 2004 in the Court of the Civil Judge, Senior Division, South Tripura, Udaipur [as it then was]. The suit had proceeded ex parte. In the meanwhile, the suit property was attached in proceeding under Section 145 of the Cr.P.C. and the said order of attachment had been challenged by the defendant and also the validity of the proceeding as aforestated was challenged. According to the defendant, the purchased deed as executed in favour of the plaintiffs by Priyadarshan Majumder is forged one and created in collusion. On recording the evidence and appreciation thereof, the Civil Judge, Senior Division by the judgment dated 04.12.2006 delivered in T.S.05 of 2006 [Annexure-3 to the paper book] the suit was decreed by declaring the title of the plaintiffs and directing the Sub Divisional Magistrate to hand over the possession of the suit land to the plaintiffs. In the perspective of the second appeal it may be mentioned that the following issues were paramount in the suit and those were decided in favour of the plaintiffs :