RAJ BALLAV DAS Vs. HARIPADA DAS

JUDGEMENT

(1.) The plaintiffs Raj Ballav Das, Nani Gopal Das and Krishna Mohan Das all residing at No.14 Buddhu Ostagar Lane, Calcutta filed this suit against Haripada Das, Smt. Renubala Das, Dilip Kumar Das, Sabita Rani Das, Pratima Rani Das, Chhabi Rani Das, Arati Das and Sulkkha Das for a declaration that each of the plaintiffs has l/5th share in the premises No.14, Buddhu Ostagar Lane, Calcutta and the allotment in severalty of their respective shares, also for a declaration that the plaintiffs 1 and 2 and the defendant No.1 Byomkesh Chandra Das the predecessor of the defendant 2 acted as a benamdar of plaintiff 3 and one Sajan Bala Dassi in respect of their respective shares in acquiring the premises No.14, Buddhu Ostagar Lane, Calcutta and for other consequential reliefs.

(2.) According to the plaintiffs the plaintiffs and the defendants are the joint owners in possession as permanent lessees of the premises. One Rebati Mohan Das had two sons Radha Ballav Das and Pran Ballav Das. Radha Ballav died in the year 1940 and Pran Ballav died in the year 1948 leaving his widow Sajan Bala Dassi as his own heir and legal representative. Radha Ballav left behind his widow Suresh Nandini Das who died in the year 1960 and Raj Ballav, Byomkesh, Nani Gopal, Krishna Mohan and Haripada Das as his sons and Labonya Prova Das as his daughter. Byomkesh died in the year 1977 leaving behind his widow Renu Bala Das, Dilip Kumar as his son and Sabita, Protima, Chhabi, Arati and Sulekha as his daughters. The parties were residents of Dacca in Bangladesh prior to partition of India. The plaintiffs, the defendants No.1 and their uncle Pran Ballav Das were joint owners and in possession of a house and building numbered as No.61, Kulutola in Dacca before the partition. After the partition the plaintiffs decided to come to Calcutta by exchanging their property at Dacca with this property belonging to a muslim gentleman. As a result on 7th Aug. 1950 by an agreement in writing between Sajan Bala Dassi, the widow of Pran Ballav Das the plaintiffs in one part and one Samsul Haque Chowdhury on the other part agreed that premises No.61, Kulutola of Dacca would be exchanged with premises No.14, Buddhu Ostagar Lane, Calcutta belonging to the said Samsul Haque Chawdhury. Apart from the exchange of the two properties the plaintiffs as also the other co-owners would pay a sum of Rs. 5,500/- to the said Samsul Haque Chowdhury. The price of the premises No.14, Buddhu Ostagar Lane, was assessed verbally at Rs. 20,000/- and the premises No.61, Kulutola Dacca was assessed at Rs. 14,500/- Under the circumstances the difference in value was paid in cash. The plaintiff No.1 paid a further sum of Rs. 634/- as and by way of advance to the said Samsul Haque Chowdhury. According to the plaintiffs although the said cheque was granted by the plaintiff 1 it was given for and on behalf of all the owners. Permanent deeds of lease were executed in respect of 14, Buddhu Ostagar Lane, Calcutta in favour of the plaintiffs. Similarly a registered deed of lease was executed in respect of premises No.61, Kulutola Dacca. After the execution of the lease plaintiffs Nos.1 and 2 and the defendant 1 Haripada Das and the said Byomkesh Ch. Das came to Calcutta with their families leaving plaintiff No.3. Krishan Mohan Das and the widow of Pran Ballav Das, Sajan Bala Dassi at Dacca, according to the plaintiff for the purpose of giving possession of the Dacca Property to Samsul Haque Chowdhury and also to look after the common interests of the plaintiffs and the defendant. It was agreed according to the plaintiff that the lease in respect of 14, Buddhu Ostagar Lane, Calcutta would be executed by the parties present in Calcutta for themselves and also as the benamdars of plaintiff 3 and the said Sajan Bala Dassi. Execution and registration of the lease was effected by the other parties and not by the plaintiff 3 and the said Sajan Bala Dassi. It was the plaintiff's case that the lease was entered into by the parties present in Calcutta as benamdars of the plaintiff 3 and the said Sajan Bala Dassi. On 4th Nov. 1950 a registered lease was executed in respect of No.14 Buddhu Ostagar Lane, Calcutta: the plaintiffs 1 and 2 and the defendant No.1 and the said Byomkesh Chandra Das executed the said lease as lessees but according to the plaintiff they acted also as benamdars so far the shares of plaintiff 3 and Sajan Bala Dassi were concerned. By a further deed dt. 30th Jan. 1951 executed by the said Samsul Haque Chowdhury through their constituted attorney in favour of the plaintiffs 1 and 2, the defendant 1 and the said Byomkesh Chandra Das the right to receive rent was acquired by them. The plaintiffs again asserted that such right also was created as benamdars in favour of plaintiff 3 and the said Sajan Bala Dassi.

(3.) According to the plaintiff the plaintiff 3 and Sajan Bala Dassi came to Calcutta in May, 1951 and occupied their respective undivided shares by residing in the said premises. The said Sajan Bala Dassi died in October, 1967 childless leaving the parties to the suit as her heirs and legal representatives. Under the circumstances according to the plaintiffs the defendant 1 has an equal l/5th share in the premises No.14, Buddhu Ostagar Lane, Calcutta along with the defendants 2 to 8 who as heirs and legal representatives of Byomkesh Chandra Das inherited l/5th share in the said premises.