MD ABED ALI LASKAR Vs. MD AYNAL LASKAR

JUDGEMENT

(1.) This Court has heard the learned the learned Advocates for the respective parties.

(2.) The facts of the case, briefly, are as follows: The plaintiff's contention was that the erstwhile landlord Shibnarayan Chattopadhyaya granted tenancy in respect of the suit property to Kartick Chandra Patowari and others but the tenants defaulted in payment of rent and the said Shibnarayan Chattopadhyaya filed a rent suit against the said tenants and obtained a decree. The said decree-holder put the decree into execution giving rise to a certain rent execution case. The rent suit was of the year 1953 and the execution case was of the year 1956. It was alleged by the plaintiff that in the execution case the decree-holder purchased the suit property by way of auction purchase on 19.9.1956 and the sale was confirmed on 22.12.1956 and a sale certificate was accordingly issued. It was the plaintiff's case that thereafter the decree-holder took possession of the suit property through Court and his name was entered into the Revisional Settlement records in respect of the suit land. The plaintiff's further case was that the said Shibnarayan Chattopadhyaya sold the suit property along with some other lands to one Ebad Ali Laskar, Basanta Kumar Sardar and Ombar Ali Sk. by registered sale deed dated 19th Baisakh, 1374 B.S. corresponding to 3rd May, 1967. The plaintiff's further case was that the said three purchasers effected amicable partition amongst themselves and subsequently the said Basanta Kumar Sardar sold his share being 25. 1/3rd decimals of land to the plaintiff by a registered sale deed dated 6.1.1983 corresponding to 21st Pous, 1389 B.S.. The plaintiff's case was that the plaintiff had been in continuous possession for a period of more than 12 years to the knowledge of the general public including the defendants and the plaintiff acquired title by adverse possession. The plaintiff further alleged that the defendants forcibly dispossessed the plaintiff from the suit property on 15.1.1983 corresponding to 1st Magh, 1389 B.S. and since then the defendants are in forcible occupation of the suit property. The plaintiff accordingly filed the suit for declaration of title, accounts and partition. The plaintiff further alleged that the suit land was erroneously recorded in the name of the Patowaris though their title was extinguished by the auction sale. The plaintiff took the stand that the defendant Nos. 1 and 2 did not purchase any part of the suit land from Ebad Ali and Ombar Ali and even if there was such purchase then the title in respect of 2/3rd share belonging to Ebad Ali and Ombar Ali together could only pass.

(3.) The defendants/appellants contested the said suit by filing a written statement alleging that the plaintiff has no possession over the suit land and, therefore, the suit is barred by the provisions of Section 34 of the Specific Relief Act. The said defendants' case was that Kartick Chandra Patowari was a tenant under Shibnarayan Chattopadhyaya and he sold the suit land to Ombar Ali by a deed dated 8.6.1971 corresponding to 24th Pous, 1378 B.S. and the auction sale was nothing but a paper transaction and the landlord never took possession of the property. The said defendants further alleged that in 1967 one Ebad Ali claimed possession of the suit property and started a case against the Patowaris which was dismissed in favour of the Patowaris. The defendants' further case was that thereafter the said Ebad Ali, the father-in-law of the said Ombar Ali, raised his claim in respect of the suit property and Ombar Ali sold out the suit property to the defendant Nos.1 and 2 by two registered sale deeds on 16th Falgoon, 1385 B.S. corresponding to 1st March, 1979 and that since their purchase the said defendants are in possession of the suit property. The defendants further alleged that the purchase made by the aforesaid three persons on 3.5.1967 and subsequently by the plaintiff on 6.1.983 are all fictitious and inoperative. The said defendants denied the material allegations made in the plaint.