DURGA PADA MUKHERJEE Vs. AMBUJAKSHYA GANGULI

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 12-11-1979 passed by Shri M. Roy. Learned Subordinate Judge, Purulia in Title Appeal No. 28 of 1975 decreeing the suit after setting aside the judgment and decree dated 29/03/1976 passed by Shri B. Basu. learned Munsif, Purulia dismissing the Title Suit No. 177 of 1973 of his Court.

(2.) Shri Sitanath Banerjee and Shri Trilochan Banerjee are two brothers had their bastu and other lands on the contiguous south of Manbazar - Dhanara Road, Purulia comprised in C.S. plot Nos. 2530, 2531, 2532, 2526, 2527 and 2525. One Brajalal Banerjee was the owner of C.S. plot No. 2529 lying to the contiguous south of C.S. plot No. 2530. After the death of Brajalal his three sons sold plot No. 2529 to Trilochan and Karali, son of Sitanath upon a registered sale deed dated 20-12-1941. In Falgoon 1358 B.S., there was amicable partition between Trilochan and Karali and a memo of partition was drawn up on 24-2-1952 corresponding to 11th Falgun 1358 B.S. signed by both the parties and other respectable persons of the village. Two lists were prepared - one list showing the lands allotted to Trilochan and the other showing the lands allotted to Karali and the lists were given to the parties. Karali got C.S. plot Nos. 2530, 2529 and other plots exclusively. After the death of Karali his heirs sold and southern half of plot No. 2529 measuring 1.5 decimals to Smt. Durga Rani, wife of Patik Mukherjee. Subsequently, the heirs of the Karali sold northern half of C.S. plot No. 2529 measuring 1.5 decimals and 1 decimal out of C.S. plot No. 2530 to Urmila Debi, wife of Sudhir Ganguli and the plaintiff-respondent here purchased the share of Urmila Debi upon a registered sale deed dated 5-12-1967. The house of the plaintiff-respondent is to the west of C.S. plot No. 2529 intervened by a gali rasta being C.S. plot No. 2522. He fenced his purchased lands by walls and he is all through in possession. During the R.S. operation, C. S. plot No. 2529 was recorded in the name of Urmila Debi in R. S. plot No. 2801 and in the name of Durga Rani wife of Patik Mukherjee in R.S. plot No. 2800. Trilochan Banerjee's share has ultimately developed upon the defendant appellant's heirs. They are in possession of the bastu and other lands of Trilochan Banerjee. The defendant's claim portion of C.S. plot No. 2529 as indicated in Schedule II in the plaint as their passage. According to the plaintiff-respondent, Trilochan or his successors had no right, title or interest in the said disputed Schedule II property. There was some litigations between the parties in the Criminal Court and there after the plaintiff appellant filed the instant suit for declaration of title and confirmation of possession and permanent injunction.

(3.) The defendant-appellant filed a written statement to contest the suit. Apart from taking separate technical objections about the maintainability of the suit, they stated, inter alia, in the written statement that the house of Trilochan Banerjee being situated in the northern extremity of C.S. plot No. 2531 covering the entire northern portion had no space for ingress or egress from abutting Manbazar - Dhanara Road on the north. Trilochan had been using C.S. plot No. 2529 as his passage for ingress and egress from his house to the gali rasta being plot No. 2522 leading to Manbazar - Dhanara Road on the north. They admit that there was an amicable partition of the joint properties between Karali and Trilochan in Falgun 1358 B.S. and two papers were prepared showing the shares of the respective parties. It is their further case that due to inadvertence or mistake of the scribe of the documents and the parties, a mistake crept in the said papers in respect of C.S. plot No. 2529. According, to the defendant-appellant, by the said partition .02 acres of C.S. plot No. 2530 and .02 acres of C. S. plot No. 2529 were allotted to Karali and .01 acre of C.S. plot No. 2529 and other plots were allotted to the shares of Trilochan. But .01 acre of land of plot No. 2529 in the allotment paper of Trilochan was not mentioned through oversight. The said land was about 6 cubits wide from north to south and running from east to west emanating from C.S. plot No. 2532 leading to the gali rasta in C.S. plot No. 2522 from east to west.