NAYAN BHEBLI Vs. BHUTNATH SARDAR

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 31st May, 1991 and decree thereof passed by the learned Additional District Judge, 3rd Court, Howrah in Title Appeal No.283 of 1985 reversing the judgment and decree dated 31st July, 1995 passed by the learned Munsif, 5th Court, Howrah in Title Suit No.87 of 1980.

(2.) The present appellants as plaintiffs filed a suit alleging that the suit property as described in the scheduled of the plaint originally belonged to one Panchu and Sadhan Sardar who sold the same to one Kusum Kumari Dasi, the grand mother of the plaintiffs by a registered deed dated 21st December, 1941. Kusum Kumari had two sons viz. Suryadev and Rabiram. Suryadev died leaving his wife Panchibala and son Ashiranjan. After death of Kusum Kumari, Rabiram together with Panchibala and Ashiranjan inherited the suit property. Later Panchibala and Ashiranjan sold their respective shares in the suit property to Rabiram by different sale deeds. Rabiram accordingly became the 16 annas owner of the suit property. After his death, the present plaintiffs as his sole heirs inherited the suit property and started to possess the same. Defendant Nos. 1 to 3 claiming themselves as joint owners of the suit property along with defendant Nos. 4 and 5 brought a partition suit in the court of learned Musnif, 5th Court, Howrah (Title Suit No.122 of 1978) wherein present plaintiffs were made proforma defendants. The present plaintiffs started to contest the suit by filing a written statement. However, on 05.01.1979 the date fixed for peremptory hearing of the said suit, the present plaintiffs as proforma defendants prayed for adjournment but the same was rejected. The suit was decreed ex parte against the present plaintiffs showing mock fight amongst the defendants though no written statement was filed by the defendant Nos. 4 and 5. None of the defendants had any right, title, interest and possession in the suit property. They collusively obtained a fraudulent ex parte decree which is not binding upon the present plaintiff. Accordingly, they have prayed for declaration of title, injunction and other consequential reliefs.

(3.) Defendant Nos. 1 to 3 and defendant Nos. 4 and 5 appeared and stated to contest the same by filing two separate written statements. They denied the material allegations of the plaint contending inter alia that the suit was barred by the principles of estoppel, waivers and acquiescence as well as res judicata. It was the specific case that the plaintiffs had no right, title, interest and possession in the suit property and that the suit was barred by the principles of res judicata in view of the decree passed in the earlier Title Suit No.122 of 1978.