PARIJAN BIBI Vs. SK JAN MOHAMMAD

JUDGEMENT

(1.) THIS is an application by the appellants under Order 47 Rule 1 of the Code of Civil Procedure for review of the judgment and decree passed by me in S. A. No. 744 of 1977 on 28-2-89.

(2.) RESPONDENT-O. P. No. 1 filed Title Suit No. 442 of 1964 before the second court of Munsif, Contai for declaration of title and for recovery of possession by removing the structure constructed by the defendants on l he suit land which appertains to plot nos. 285 and 286 and the middle portion of plot no. 287. Plaintiff claimed title to the disputed property by virtue of purchase from one Narendra Patra by a registered Kobala dated 17-3-63. Narendra Patra in his turn purchased the same from Ruman Bibi and two others who got the suit property exclusively in their share by the virtue of a final decree passed in a suit for partition. The defendants contests the suit by filing a written statement in which it was pleaded, inter alia, that Ruman Bibi did not execute the Kobala dated 2-8-62 in favour of Narendra Patra as alleged by the plaintiff and the plaintiff did not derive any right title and interest in the suit property by his alleged purchase from Narendra Patra. It was the defence case that Ruman bibi was dead at the time of execution of the Kobala on 2-8-62. This plea had to be given up at the time of trial since Ruman Bibi was examined by the plaintiff as P. W. 1.

(3.) THE Trial Court held that the sale in favour of Narendra Patra, predecessor-in-interest of the plaintiff was void in as much as Ruman Bibi, one of the vendors, was then a minor. Accordingly the Trial Court dismissed the suit. The lower Appellate Court overruled the finding of the Trial Court that the sale by Ruman Bibi and two others, in favour of Narendra Patra by a registered kobala dated 2-8-62 (Ext. 1) was are on the ground that the age of Ruman Bibi was not an issue and it was not the defence case that Ruman Bibi was a minor at the time of the execution of Kobala. The learned Subordinate Judge was of the opinion that in the facts and circumstances of this case it was extremely unreasonable to come to a finding on the basis of an arithmetical calculation regarding the age of Ruman Bibi at the time of the execution of the document merely relying upon her statement in the cross-examination that she was 25 years old on the date of deposition on 1975. The learned Subordinate Judge held that the plaintiff acquired title to the disputed property and the defendants had no manner of right, title and interest in the same. He, therefore, allowed the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit.