DUKHIRAM DEY Vs. MRITYUNJOY PROSAD DAW

JUDGEMENT

(1.) Title Suits Nos. 73 of 1966 and 102 of 1967 were heard analogously. In the former suit, the plaintiffs are Mrityunjoy Prasad and Bhairab Nath. Their case is that the disputed plot No. 4162 was duly recorded in the C. S. Khatian in the name of one Sheikh Hamizuddin, who was its owner under the landlords, who were Kandu Chaudhuris. In 1945, he expired leaving one Sheikh Akbar as his son. Akbar used to possess the land till 1950, when on account of communal disturbance in the locality, he left the place. The properly in suit together with the structures standing thereon remained vacant and unoccupied. By a registered kobala executed on the 2nd Feb. 1965, Sheikh Akbar sold the property for Rs. 1000/- to one Tara prasad Sarkar, who took possession thereof. Then by a registered sale deed dated 30th Apr. 1966. Tara Prosad sold that property to the plaintiffs for a sum of Rs. 11,500/-. The plaintiffs obtained possession, in the R. S. Khatian. the land was recorded in Sk. Akbar's name. Tara prosad filed an application in the Baranagore Municipality for mutation of his name. The plaintiffs also filed similar application in that Municipality, but the same is pending. Defendant No. 1, Dukhi Ram Dey. has been declaring that he is the owner of the property on the footing of a kobala executed by the heirs of Sheikh Mofi-juddin on the 19th Nov. 1952; and Tara Prosad and plaintiffs also did not acquire any title. The plaintiffs took out a copy of that kobala and noticed that Dukhi Ram purported to purchase both the plot No. 4162 and the adjoining plot No. 4163 taking, advantage of Sk. Akbar's absence from the locality. Sk. Mofijuddin or his heirs never had any interest or possession and consequently, Dukhi Ram also did not acquire any title thereto. The suit is for declaration of title to the property in question. Subsequently, the plaint was amended and it was asserted that should the plaintiffs be found to be out of possession, a decree might be passed for recovery of possession,

(2.) Defendant No. 1 filed a written statement denying the plaintiffs' allegations. The defence, inter alia, is that Sk. Mofijuddin, who was a tenant of the property, possessed the plots Nos. 4162 and 4163 exclusively by paying rent and municipal taxes. Sheikh Hamijuddin or Sheikh Akbar had no title or possession. Sheikh Akbar is a fictitious person. After Mofijuddin died, his sons, Sk. Mansur Ahanimad, Sk. Bechu and Sk. Raja and his widow, Hamidun Bibi, inherited the property and possessed the same exclusively. Then Sk. Mansur and others sold those two lands together with the structures standing thereon to him by a registered kobala dated 19th Nov., 1952. He possessed the same and paid the rent and the municipal taxes. The kobalas executed in favour of Tara Prosad and of the plaintiffs are collusive and bogus documents executed without consideration. The suit is barred by time. Moreover, the suit is also barred by adverse possession. After the purchase he evicted a tenant and some trespassers, who remained in unauthorized occupation of the property. The R. S. Khatain was prepared in his name.

(3.) It is necessary to state some other facts. Dukhi Ram evicted one Atindra Nath Datta from the property and obtained possession, Then the plaintiffs filed a misc. case under Order 21 Rule 100 of Civil P. C. against him complaining of dispossession and won that case. That decision was challenged by Dukhi Ram by filing the Title Suit No. 102 of 1967 under Order 21, Rule 103 of the Code. He has repeated his statements which he had engrafted in his written statement in Title Suit No. 73 of 1966. He has prayed for declaration of his interest in the property and for a permanent injunction.