USHABALA ADHIKARI Vs. MANASHI GHOSH

JUDGEMENT

(1.) - This Second appeal has been preferred challenging the judgment and decree dated 4.4.1975 passed by the learned Additional District Judge, 4th Court at Alipore in Title Appeal No. 1050 of 1971 affirming the judgment and decree dated 14.10.1974 passed by the learned Munsif, 1st Court, Alipore in Title Suit No. 35 of 1975.

(2.) This appeal originates from suit for injunction. The case as has been made out by the plaintiff is that the plaintiff is the owner of .03 acres of land and the structure thereon which is the suit property. According to the plaintiff, one Nachu Dhali was the owner and he wanted to settle the suit property in tenancy right to Baroda Adhikari who was a neighbour of the said Nachu Dhali. Adhikari took settlement of the same at a rental of Rs. 6.00 per annum and on payment of a premium of Rs. 15.00. The condition was that said Shri Adhikari would pay Rs. 5.00 to the landlord of said Nachu Dhali and Re. 1.00 only to Nachu Dhali. The said Baroda Adhikari was solely responsible for making payment of rent to the landlord of Nachu Dhali. Adhikari possessed the same till 1337 B.S. erecting house thereon. About 10 to 11 years back the defendant No. 2 Shri Subal Chandra Adhikari tried to dispossess forcibly but failed. The defendant No. 2 then filed a criminal case on the plea that the suit property has been purchased by the defendant No. 2 in the name of defendant No. 1. Ultimately the defendant No. 2 lost the criminal case. Thereafter the defendant No. 2 filed Title Suit No. 230 of 1963 but the same was dismissed. The defendant No. 2 then preferred an appeal but the said appeal was also dismissed on 17.2.1967. In the plaint the plaintiff averred that in 1374 B.S. i.e. on 13.11.1967 Baroda Adhikary sold it to Naren Ghosh. Naren Ghosh then sold it to the plaintiff by registered Deed of sale on 6.12.1972 and since then the plaintiff is in possession. Defendants are disturbing the possession of the plaintiff and hence this suit.

(3.) The defendants contested the suit by filing Written Statement. In the written statement the defendants took a stand that the suit is barred by limitation and it is also barred by section 34 of this SPECIFIC RELIEF ACT, 1963. The defendants also stated that the defendant No. 2 purchased a property from Nachu Dhali by a Registered Deed of Conveyance on 20.12.1962 and since then they are in possession. According to the defendants, the transaction between Baroda Adhikary and Naren Ghosh was a sham transaction and in fact, no consideration passed. The defendant No. 2 also averred that he is paying rent to the Government and payment has already been made upto 1379 B.S. Defendants also claimed that the said Nachu Dhali recorded his name in the District Settlement Record of Right as well as Revisional Settlement Record of Right.