ACHINTA KUMAR SAHA & ANR. Vs. RAJKISHORE SARKAR

JUDGEMENT

(1.) This is the plaintiff's appeal against the Concurrent judgment and decree of affirmance dismissing the plaintiff's suit for declaration of title and joint possession.

(2.) The suit property is a tank originally belonging to Kalimuddin in 8 annas share and the remaining 8 annas share belonging to Ayezuddin and Reazuddin. The plaintiff's case is that they purchased Kalimuddin's interest by a registered conveyance dated May 1, 1954 for a total consideration of Rs. 999/- following a Bainanama of June, 1953 when a consideration of Rs. 400.00 was paid. Since the purchase the plaintiffs came to possess the suit property in 8 annas share. The defendant No. 1, the contesting defendant, started criminal proceeding under sections 107 and 144 of the Code of Criminal Procedure alleging that he took settlement of the suit tank on Dec. 6, 1953 corresponding to Agrahayan 22, 1360 B. S. after the surrender by the said previous owners of their interest in the tank to the landlord. The plaintiffs averred that there was no such surrender of the tank by Kalimuddin and a surrender was manufactured on papers. The plaintiffs accordingly, filed this suit on Sept. 22, 1954 for declaration of their 8 annas title and joint possession with the contesting defendant.

(3.) The defendant No. 1 filed a written statement denying the material allegations made in the plaint. It was his specific case that Kalimuddin and his co-sharers surrendered their right, title and interest in the suit tank to the landlord, who, thereupon, possessed the same for some time and on Dec. 6, 1953 settled the suit tank to the said defendant at an annual rent. On the basis of such settlement the defendant had been in lawful possession thereof, and in any event, the suit was barred by limitation.