CHINTAMONI SAHA Vs. KESHAB CHANDRA SAHA & ORS.

JUDGEMENT

(1.) This is a plaintiffs second appeal against a judgment of affirmance. Title Suit No. 583 of 1970 was instituted by the plaintiff in the Court of the learned Munsif, Second Court at Diamond Harbour for declaration of title and for injunction. It is contended by the plaintiff that by an amicable partition with their co -sharers the plaintiff and his brother, Binoy Krishna Sana, exclusively got the suit properties allotted in their favour. On the death of Binoy Krishna, the plaintiff inherited the suit property and became the sole owner thereof. The plaintiff, also, contended that, alternatively, he has acquired a good title by adverse possession. The plaintiff being an old person could not attend the R.S. operations and as such in R.S. Khaitan erroneously entered the name of the defendant No. 1 in column No. 23 in tenancy right. It is contended that the suit property was never auction sold in connection with Money Execution Case No. 86 of 1944 and the title of the plaintiff is not affected by such alleged sale. The defendant No. 1 has no interest and possession in the suit property.

(2.) The defendant No. 1 filed a written statement and contended that Nayantara, the sister of the defendant No. 1. was the wife of the Binoy Krishna. Nayantara filed a suit for maintenance being Title Suit No. 40 of 1943 and obtained a decree in her favour. The decree was put into execution in Case No. 86 of 1944 and, ultimately, decree -holder, in execution of the said decree, auction purchased the half share of the suit plots along with other lands on March 5, 1945. Nayantara obtained sale certificate from the Court and got possession of the lands through Court She had been in possession till her death and on her death in 1356 B.S., the defendant No. 1 had inherited her share in suit property in default of lineal descendant as her sole heir. It is contended that the defendant No. 1 has been in possession thereof, paid rents and his name has been duly recorded in the recent R.S. record of rights.

(3.) By judgment and decree dated December 23, 1974. the learned Munsif, after considering the materials placed before him, decreed the suit in part and declared the plaintiff's title in respect of plot Nos. 3989, 5099 and 5116 in full and to the extent of half share in the remaining suit plots.