PURNA CHANDRA BASAK Vs. DAULAT ALI MOLLAH

JUDGEMENT

(1.) This second appeal arises out of a suit filed by the plaintiff-appellant for confirmation of his possession in the disputed property and for a permanent injunction upon a declaration of his title thereto. The plaintiff purchased the suit land from one Dud Ali Mollah under a registered kobala dated 22nd Ashar, 1361, B. S., corresponding to 7th July, 1954 and was in possession since the purchase of the property. The plaintiff's case is that the defendant had no title in the land and was wrongfully trying to interfere with his possession. The main defence of the defendant is that the suit property was attached in execution case No. 17 of 1954 on 19-5-1954 and the suit property was purchased by him in a court-sale on 9-5-1955. Since then the defendant is staled to be in lawful possession of the suit property.

(2.) It is in evidence that Dud Ali Mollah to whom the suit land originally belonged entered into an agreement for sale of said property with the plaintiff. A Title Suit being Title Suit No. 155 of 1954 (Ext. 2) was instituted by the plaintiff against the said Dud Ali Mollah for the specific performance of the agreement for sale. In the said suit a compromise decree was made and as a result of the said compromise, the plaintiff purchased the suit property on 7th July, 1954. As already stated the very said property was attached in Execution Case No. 17 of 1954 on 19-5-1954, i.e., about two months prior to the plaintiff's purchase of the suit property. The defendant purchased the property on 9-5-1955 in a court-sale after the plaintiff's purchase of the suit property on 7-7-1954.

(3.) On these facts the learned Munsiff, Basirhat, dismissed the suit holding inter alia that the purchase of the property by the plaintiff in pursuance of a compromise decree was a private transfer of the property and is hit by Section 64 of the Code of Civil Procedure (hereinafter referred to as the Code). On an appeal the learned Additional District Judge, Basirhat, upheld the said view of the trial Court and dismissed the appeal.