ON THE DEATH OF SM. TRITAP HARINI DEBI, HER HEIRS AND LEGAL REPRESENTATIVES GANESH CHANDRA BANERJEE AND OTHERS Vs. ON THE DEATH OF SAILENDRA NATH BHATTACHARYA, HIS HEIRS AND LEGAL REPRESENTATIVES. SM. ANNAPURNA DEBI AND OTHERS

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff whose suit for declaration of title, confirmation of possession and permanent injunction was dismissed by the learned courts below. The suit property comprises 80 decimals of land recorded in c.s. plot no. 1367 of mouza Gopkhanji, P.S. Karwa. In the c.s. record the suit property was recorded in the name of Golap Sundari appertaining to the Jama of Rs. 14-10 annas. In the r.s. record the suit property was recorded in the name of the plaintiff under one Jitendra Lal Hazra. A new Jama of Rs. 3-10 annas came to be created in respect of the disputed plot. The plaintiff's case was that one Golap Sundari Dassi had absolute interest in the suit property along with other properties. One Nalini Kanta Bhattacharya purchased the suit property by a registered kobala dated March 20, 1932 from Golap Sundari and after his death his daughter Bijali Bala became the owner. The plaintiff purchased the suit property from Bijali Bala by a registered kobala dated June 20, 1949. After her purchase the plaintiff obtained possession and cultivated the same sometime through bargadar and sometimes in khas. There were several criminal cases with the defendant no. 1 who had been trying to disturb the plaintiff's possession on the basis of a fictitious kobala from one Radha Pada Mondal who claimed to be the reversioner in respect of the suit property. Radhapada had no interest at any time and the defendant no. 1 did not acquire any title. The suit was contested by the defendant nos. 1 and 2 by filing a joint written statement. Their contentions were that the suit property originally belonged id one Tarachand Gharami appertaining to a Jama of Rs. 14-10 annas. Tarachand died leaving his widow Barada Sundari and two daughters Golap Sundari and Nistarini. Nistarni died during the lifetime of her mother leaving her son Radhapada Mondal, vendor of defendant no. 1. After the death of Golap Sundari, the suit property devolved upon Radhapada who obtained possession and thereafter he sold the same to the defendant no. 1.

(2.) The learned Munsif held that the plaintiff could not acquire any right, title and interest by her purchase from Bijolibala as her vendor's interest in the suit land ended after Golap Sundari's death The plaintiff preferred Appeal no 39 of 1962 against the said decision. The learned Additional District Judge upheld the finding of the learned Munsif and dismissed the appeal. The plaintiff has challenged the said decision in the present second appeal

(3.) Mr. Chandrnath Mukherjee, learned Advocate for the appellants, has contended that the learned courts below did not properly consider the evidence on record They have, also failed to take into account the document (Ext 3) the dakhila which shows that the Jama of Rs. 14-10 as was purchased by Barada Sundari. It has been contended by Mr. Mukherjee that the c.s. record was in favour of Golap Sundari and the r.s. record was in favour of the plaintiff. The presumption of correctness of these documents has not been rebutted and the learned court below have failed to take into consideration the inference of law that would arise from these document. He argues that the mere fact that a widow is in possession does not necessarily lead to the inference that she was in possession as a limited owner. The contention of Mr. Mukherjee is that the learned lower appellate court based its judgment on conjectures and surmises. The learned Judge completely misdirected himself when he based his conclusions upon recitals of some documents. Kobala (Ext. A2) was executed by Golap Sundari on June 23, 1951, that is, a few days before her death. This kobala was long after the plaintiff's purchase. The alleged admission made by Golap Sundari in Ext. A-2 cannot under the law affect the plaintiff's interest derived under the documents (Exts. 4 (a) and 4.) He has further argued that the learned appellate court did not consider that before the question of legal necessity for alienation by a woman can be raised, it must be shown that she was in possession of the property holding the limited interest of a Hindu woman. The learned lower appellate court thus committed errors on questions of law and the plaintiff is entitled to declaration of title.