GOURI PATRA Vs. KUMARI SOVA DAS

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the judgment and decree passed in Title Appeal. no. 17 of 2004 by learned Additional District Judge, 2nd Court, Howrah, present second appeal has been preferred. By the impugned judgment and decree dtd. 12/7/2011, learned court below set aside the judgment and decree passed by learned Civil Judge (Junior Division) 5th Court Howrah dtd. 14/1/2004 in Title Suit. No.69 of 1995 and thereby also disposed of appellants application under Order XLI, Rule 27 of the Code of Civil Procedure (CPC).

(2.) One Sambhu Charan Patra predecessor of substituted Appellants herein, as plaintiff filed aforesaid Title Suit. No. 69 of 1995 against defendant no.1 namely Kamala Rani Mukherjee, predecessor in interest of the present respondent no.1 with a prayer for declaration that said defendant no.1 has no manner of right title interest or possession in the suit property along with further declaration that the deed of sale executed by defendant no.3, Smt. Lalita Bala Mondal in favour of said defendant no.1 dtd. 19/7/1989 is void, in operative and not binding upon the plaintiff and also with prayer for injunction. Plaintiff's case as made out in the plaint is that the mother of the plaintiff Smt. Durga Bala Dasi purchased 03 cottahs of land from one Jatan Chandra Adak on 29/3/1946 and later on, she sold the said plot no. 90 having municipal holding no. 45/1 Girish Ghosh lane to Smt. Sukriti Bala Dasi on 13/12/1965. Further case of the plaintiff is that said Durga Bala was also a Thika Tenant in respect of 03 cottahs of land which is situated just by the aforesaid property under plot no. 89, being holding no. 45 Girish Ghosh lane (in short GG Lane) and upon her death the plaintiff Sambhu Charan Patra became the owner thereof by way of inheritance and he is in possession of the same. Plaintiff further contended in the plaint that on 31/12/1965, by executing a deed of kobuliyat in favour of Smt. Sukriti Bala Dasi, the plaintiff took settlement of 1 1/2 cottahs of land situated under holding no. 45 GG Lane and after amalgamation with the property left by his mother, the total quantum of land comes to more or less 4 1/2 cottahs and plaintiff was in possession of the said land under superior land lord and after promulgamation of Thika Tenancy Act 1981 plaintiff became Thika tenant under the State.

(3.) While the plaintiff was in peaceful possession of the said property, said defendant no.1 started claiming to be the owner of a part of the said property measuring 1 1/2 cottahs of land including structure standing thereon, on the strength of deed of sale alleged to have been executed by defendant no. 3 Lalita bala Mondal in the year 1989. Plaintiff's specific case is Lalita Bala had no right title interest or possession in the suit property at any point of time and since the property in question had already been vested in the State of West Bengal under the provision of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, Said Lalita Bala had no right to transfer the said vested land in the year 1989 i.e. long after the promulgamation of said Act of 1981 by overriding the statutory provision of law. Accordingly plaintiff prayed for declaration of his ownership as well as for declaration that the deed is not binding upon him.