PHANI BHUSAN DAS Vs. KENARAM BHUNIYA

JUDGEMENT

(1.) The plaintiff has alleged that the disputed property belonged to Sridhar, Dharani and Gadadhar, who were brothers. In the C. S. Khatian, the property was erroneously recorded in their names as the shebait of one Santa Goswami Thakur. As a matter of fact, the property is a secular one. Sridhar died first leaving his son, Akshoy. The plaintiff purchased his 1/3rd share by a registered kobala dated 28-11-1941. Dharani had no son and his wife, Suchitra, became unchaste during his life time. She illegally married one Bepin Mondal. So, his brother, Gadadhar, inherited Dharani's share in the property. He left three sons, Surendra, Debindra and Netai. Surendra's son is Hrishikesh. On the 7th June, 1952, 2/3rds share of Deben-dra, Netai and Hrishikesh was sold to the plaintiff by registered sale deed and thus, he became the 16 annas owner of the property. Defendants Nos. 1, 2 and 3 colluded with one Bhuban Pal and obtained a fraudulent and inoperative kobala from Suchitra, unchaste wife of Dharani, in favour of one Bhuban Pal. Then the plaintiff started a criminal proceeding and subsequently, Bhuban Pal gave up his claim to the property. Then the defendants Nos. 1 and 2 fraudulently obtained a kobala regarding the property on the 14th August, 1957, from her. Defendant No. 3 is the father of defendant No. 2. The defendants harvested paddy from a portion of the property. Hence this suit for confirmation of possession on declaration of the plaintiff's title to the disputed land, for an injunction and alternatively, for recovery of khas possession.

(2.) Defendants Nos. 1 and 2 filed a written statement denying the plaintiffs allegations. The defence is that the disputed property was dedicated to Sri Santa Goswaini Thakur. Dharani was the sole shebait of that absolute debutter property. Suchitra did not become unchaste. After Dharani's death, Suchitra became the sole shebait. On the 14th August, 1957, he validly transferred the property to them. The plaintiff had no title or possession.

(3.) The suit was dismissed. The learned Munsif held that Suchitra never became unchaste or remarried anybody. She remained in possession of the property. An appeal was preferred by the plaintiff. The learned Subordinate Judge held that the disputed land was a secular property and not a debutter one. Suchitra never became unchaste or remarried anybody. Suchitra's possession in a portion of the property was admitted by the plaintiff. That court stated that in that view of the matter, she inherited l/3rd share in the property after the death of her husband. So, by purchase, the plaintiff acquired title to the extent of 2/3rd share in the property. The appeal was allowed and the suit decreed in part declaring the plaintiff's 2/3rd share and granting a decree for joint possession to the extent of such share. A permanent injunction was also granted. The defendant preferred a second appeal, which was allowed. The High Court stated that the learned Subordinate Judge allowed the appeal because of misinterpretation of the deed of gift, Ext. G, executed by the maternal uncle. Gopal, in favour of his nephew, Dharani. The matter was remitted to reconsider the matter. The learned Subordinate Judge accepted the findings of the learned Munsif and held that it was an absolute debutter property. Dharani was the sole shebait. After his death, Suchitra became the sole she-bait. Hence, the plaintiff had no title. The appeal was, therefore, dismissed. Hence this second appeal.