ASHALATA MAHAPATRA Vs. KAMAL KRISHNA GOSWAMI

JUDGEMENT

(1.) This second Appeal has been preferred challenging the judgment delivered and decree passed by the learned Additional District Judge, 2nd Court, Midnapore in Title Appeal No. 229 of 1976 dated 11.5.1977 and 18.5.1977 respectively reversing the judgment and decree dated 12.3.1976 and 20.3.1976 respectively passed by the learned Munsif, 2nd Court at Midnapore in Title Suit No. 231 of 1966.

(2.) The defendant Nos. 2 to 4 are the appellants herein. The case as has been made out by the plaintiff Kamal Krishna Goswami in the plaint is, inter alia, as follows: The plaintiff (respondent No. 1 herein) stated in the plaint that the suit land belonged to the mother of the plaintiff Siddeswari Debya who purchased this land by an auction sale and has been possessing the suit land by praying rents to the Government after mutation of her name. The said Siddeswari Debya used to own and possess the suit land along with other lands. Remaining in possession of the said land including the suit land Siddheswari died leaving her son, the plaintiff and daughter Mayalata and she died long before the promulgation of Hindu Succession Act. Siddheswari executed a Will bequeathing her properties in favour of her only son, the plaintiff. After attaining majority the plaintiff took charge of the properties from one Sri Bhuban Mahan Pal who used to look after his properties during his minority. The defendant No. 1 that is Sri Hrishikesh Pahari used to reside near the house of the plaintiff and he had got good relation with the father of the plaintiff. Bholanath Mahapatra was the husband of defendant No. 2 Ashalata and the father of the defendant Nos. 3 and 4. The defendant No. 1 got a 'Nadabi' executed from the plaintiff in his favour in respect of the suit land. According to the plaintiff the said 'Nadabi' is not binding against him.

(3.) Said Bholanath Patra, the husband of the defendant No. 2 in collusion with defendant No. 1, Hrishikesh managed to record the disputed plot No. 368 (10 decimal) and 368/532 (.33 decimal) as tenant under plaintiff. According to the plaintiff, the ROR in the name of Bholanath is erroneous, illegal and without any basis. The plaintiff applied before the Revenue Officer under section 44(1) of the West Bengal Estate Acquisition Act, 1953 for correction of the erroneous recording but that application was rejected. According to the plaintiff, he never gave settlement to Bholanath in so far as the suit land is concerned. The plaintiff never recognised Bholanath as tenant or realised rent of alleged 13 annas and one pai. The defendant Nos. 1 to 4 taking advantage of the erroneous recording started cutting the branches of the trees in and over the suit land and also collected materials for construction of house therein. Hence the cause of action of the suit arose on 15.1.1966 (1st Magh, 1372 B.S.). The suit was filed by the plaintiff praying for declaration of title in respect of the suit land. The plaintiff in this suit also prayed for permanent injunction restraining the defendants from disturbing his possession in and over the suit land. The plaintiff further prayed that if the Court finds that by this time the plaintiff has been disposed then the recovery of possession he prayed in his favour.