ASUTOSH BHANDARI Vs. JOGMAYA DEVI

JUDGEMENT

(1.) This appeal is from the appellate judgment and decree affirmed those of the court of first instance passed in a suit for declaration of title to the suit property and for recovery of possession thereof which was brought on the following allegations.

(2.) The plaintiff Jogmaya and her mother Rai Kishori purchased the property described in schedule A to the plaint from one Bhani Ram Marwari by a registered deed of sale for a consideration of Rs. 1300/-. After such purchase, they started possessing the suit property. Anukul Bhandari, the predecessor-in-interest of the defendants, took lease of the suit property described in Schedule to the plaint at a monthly rental of Rs. 5/- in the name of his son, the defendant No. 1 Ashutosh. Thereafter the plaintiff and his mother executed a kobala on November 11, 1943 in favour of one Khgendra Nath Dutta. That kobala in favour of Khagendra was a purely sham transaction and was not backed by any consideration. Khangendra used to manage the property on behalf of the plaintiff and her mother. On February 18, 1948, said Khagendra executed a fraudulent deed of sale in favour of said Anukul Bhandary, father of defendants Nos. 1 to 4 and 6 to 8 and husband of defendant No. 5 in respect of item No. 2 of property mentioned in schedule A to the plaint. The plaintiff and her mother accordingly filed a suit for declaration of title to the said property and a further declaration that the said Kobala dated November 11, 1943 was a benami Kobala. Khagendra and Anukul contested the suit and it was decreed in favour of the plaintiff and her mother. That suit came up to this Court and the plaintiff and her mother ultimately succeeded. Thereafter Rai Kishori the mother of the plaintiff died and her interest devolved on her sole heir, the plaintiff. The plaintiff accordingly became the 16 annas owner of the A schedule property. On February 12, 1961, said Anukul died and the tenancy right accordingly devolved on the defendants who were his heirs. As the defendants failed to pay rent since Falgoon 1367 B. S. and sublet a portion of the suit premises, the plaintiff brought the present suit for eviction of the defendants after duly determining their tenancy by serving a notice of ejectment requiring them to vacate the suit premises on the expiry of the 31st day of Ashar 1376.

(3.) The defence as disclosed by joint written statement filed on behalf of the defendants Nos. 1 to 5 is as follows : The suit is not maintainable on the ground that the same stands barred by limitation. The truth of all material allegations made in the plaint was denied and the defence case is that Anukul Bhandary was never a tenant under the plaintiff and accordingly the defendants are not tenants under the plaintiff. The defendants acquired a good title to the suit property through adverse possession.