ABHIMANYA BISWAS Vs. ABDUL SK

JUDGEMENT

(1.) This is an appeal from the decision of the learned Additional Subordinate Judge, Nadia in Title No. 231 of 1969 affirming the judgment and decree of the learned Munsif. Additional Court, Krishnagore in Title Suit No. 37 of 1969.

(2.) The plaintiff Daud Seikh (since deceased) brought the suit for a declaration of title on avoidance of a kobala purported to have been executed on 29-2-1968 in favour of the defendants Nos. 1 and 2 and permanent injunction. The plaintiff's case stated briefly is this. The plaintiff and his nephew the pro forma defendant No. 4 had 8 annas share each in the disputed plot No. 401 of Mouja Kanthalia. The defendant No. 1 purchased the share of the pro forma defendant No. 4 and by an amicable oral partition between the plaintiff and the defendant No. 1 the southern half of the said plot was allotted to the plaintiff. The plaintiff was an illiterate and simple villager aged about 70 and the defendant No. 1 set up cordial relationship with him and used to call him father. On 29-2-1968 the defendant No. 1 on a representation to the plaintiff that as his kobala of purchase from the defendant No. 4 had been lost by fire a deed of partition was necessary, took the plaintiff to the Sub-Registrar's Office at Karimpur and in collusion with the unscrupulous deed writer Subodh Sarkar (defendant No. 3) got a kobala dated 29-2-1968 in respect of 8 annas share in the disputed plot executed by the plaintiff in favour of the defendant No. 1 and the defendant No. 2 Subhas a minor brother of the scribe for a purported consideration of Rs. 2,000/-, describing the document to the plaintiff to be a deed of partition. On 2-3-1968 the defendant No. 1 threatened to dispossess the plaintiff from the suit land giving out that he had purchased the same from the plaintiff. The plaintiff thereafter took a certified copy of the said document and came to know of the fraud committed on him. The contents of the purported kobala were not read over or explained to the plaintiff. No consideration money was paid to him. Thereafter at the instance of respectable persons of the village the defendant No. 2 executed a deed of disclaimer dated 11-3-1968, through his guardian mother in favour of the plaintiff. The defendant No. 1 at first agreed to do so but ultimately refused. So, the plaintiff brought the suit on 29-3-1968.

(3.) The defendant No. 1 alone contested the suit. His defence in the written statement is a denial of the material allegations of the plaintiff relating to misrepresentation and fraud touching the disputed kobala dated 29-2-1968. His case is that he was a bargadar of the disputed land and the plaintiff asked him to purchase the said land. As he had no capacity to pay the entire amount of the price of Rs. 2,000/- settled, he purchased the disputed land jointly with the defendant No. 2. The plaintiff executed the kobala in question after being fully aware of the nature and contents of the document and taking the consideration money. The plaintiff filed a suit in collusion with the defendant No. 2 and some local people.