SRIMATI NIRODANANDINI MONDAL Vs. SANDHYA RANI MONDAL

JUDGEMENT

(1.) These two appeals were heard together as those are directed against a common judgment dated 28th November, 2000 passed by the learned Civil Judge, Senior Division, 7th Court, Alipore, thereby disposing of two suits, one for eviction of a licensee and the other, for partition by dismissing the suit for eviction and passing a preliminary decree in the suit for partition. Being dissatisfied, the plaintiffs of the eviction suit, who are the defendants of the partition suit, have preferred these two appeals. The facts, giving rise to filing of the aforesaid two suits out of which these two appeals arise, may be summed up thus: One Jamini Mondal had two sons, viz. Niranjan and Pulin. The suit for eviction has been filed by the heirs Niranjan by treating Pulin as licensee under them whereas Pulin has subsequently filed the suit for partition claiming half share in the property by virtue of a registered deed of sale executed by Jamini in favour of both Niranjan and Pulin.

(2.) According to the heirs of Niranjan, their predecessor was the original owner of the suit land, which he purchased with his own money. Subsequently, at the time of making construction over the land in question, Niranjan took loan of Rs.3,000/- from Jamini, his father, and executed an apparent deed of sale in favour of his father with oral agreement for reconveyance on the stipulation that after the repayment of the said loan, Jamini would reconvey the property in favour of Niranjan. Such sale-deed was executed by Niranjan in the year 1964. ACCORDING to the plaintiffs, in fact, pursuant to such understanding, Jamini executed a deed of reconveyance in favour of Niranjan, where the stamp paper was purchased by Niranjan, but it was subsequently detected that in the saledeed, Pulin was shown to be joint purchasers along with Niranjan. ACCORDING to the heirs of Niranjan, Pulin was looking after execution of the deed, and by practising fraud in collusion with the lawyer who drafted the deed, he incorporated his name as one of the joint purchasers though Niranjan alone paid back the full consideration money as per agreement. ACCORDING to the heirs of Niranjan, such fraud was detected subsequently by Niranjan during his lifetime when Pulin pleaded for mercy and even had given a declaration in writing that Niranjan was the absolute owner of the property. After the death of Niranjan, Pulin became the guardian of the heirs of Niranjan and on the plea of mutating their names in the municipality, he took back of all papers including the written declaration given by him, which was subsequently not returned, and it transpired that Pulin mutated his name along with heirs of Niranjan in the Municipal records. Hence, the suit was filed for eviction by treating Pulin as a licensee.

(3.) The learned Trial Judge on consideration of materials on record came to the conclusion that the plea of the heirs of Niranjan that fraud was practised upon Jamini by Pulin had not been established and as such, in view of the saledeed executed in the year 1970 by Jamini in favour of his both the sons, Pulin and Niranjan acquired 8 annas share each in the property. It was pointed out that although Niranjan was alive even after detection of fraud till the year 1977, he, during his lifetime, never initiated any proceeding for annulling the deed executed by his father as a void document.