JAYA KARMAKAR ALIAS JAHIDA HOSSAIN Vs. AJMAL HOSSAIN

JUDGEMENT

(1.) The plaintiff is the appellant against a judgment of affirmation. The plaintiff filed a suit being O.C. Suit No.200 of 1986 in the Court of learned Munsif, First Court, Malda alleging as follows:

(2.) The plaintiff married the defendant on 20.07.1976 under Special Marriage Act and she left the house of her father with 20 /22 gold ornaments and Rs.5 /6 thousand in cash. They started to live as husband and wife and had issues. The plaintiff purchased the suit property on 07.05.1981 from vendor Bimal Kumar Majumder on payment of Rs.18,000/-. She procured said money by selling her ornaments. A house was also constructed with her money where she started to reside with her husband and children. She also sold some land to one Md. Ilias on 04.09.1981 by a registered kobala. As defendant husband became addicted to other women the relation between the parties became strained. The defendant husband put pressure upon the plaintiff wife for transferring suit property in his favour. He forcibly took away the plaintiff to his native village at Jadupur for putting further pressure. However, there was a village salish on 30.09.1984 wherein he made an agreement admitting the claim of the plaintiff in the suit property. However, in the meantime he managed to obtain an ex parte decree in O. C. Suit No.159 of 1984 by practising fraud upon the Court by suppressing summon. On 4th August, 1986 the defendant tried to forcibly dispossessed the plaintiff from the suit property and then she learnt about said fraudulent ex parte decree. Hence was the suit praying for declaring her right, title and interest in the suit property with a further declaration that the ex parte decree in O. C. Suit No.159 of 1984 obtained by the defendant was void being vitiated by fraud and for permanent injunction.

(3.) The defendant contested said suit by filing written statement. Though he admitted the marriage between the parties and having children through said wedlock but denied the allegation of having ornaments and her money by the plaintiff through her father. According to him, the plaintiff's family was a very poor one and there was no question of leaving her father's house with huge gold ornaments or money as alleged. The suit property, according to the defendant, was purchased by him in 'Benam' of his wife as he purchased the same with his own money as well as money taken from his father just to avoid future complication from his brothers and other co-sharers. It is further case that the notice and summon of the earlier suit (O.C. No.159 of 1984) were duly tendered to the present plaintiff wife (defendant of the suit) but she refused to accept the same, and that the present subsequent suit is barred by the principle of res judicata and is not maintainable.