MANMATHA NATH DHARA Vs. PANCHANAN JANA

JUDGEMENT

(1.) This second appeal by the Plaintiff arises out of a suit instituted by him under Order XXI, Rule 103 of the Code of Civil Procedure for establishment of his right to the present possession of the disputed land based upon an order of pre-emption under Section 26F of the Bengal Tenancy Act and for an order of injunction to restrain the Defendants from interference with his possession.

(2.) The disputed land forms part of an occupancy holding described in sch. Kha to the plaint. Kedar, father of the Defendants Nos. 1 to 4, admittedly owned this holding'. He sold to the Plaintiff by Ex. 1 dated June 2, 1935, a portion of this holding, so that the Plaintiff became a co-sharer in respect of the holding with Kedar. After Kedar's death his sons namely Defendants Nos. 1 to 4 sold to pro forma Defendant No. 5 the remaining portion of the holding for Rs. 250 on November 4, 1943. The Plaintiff, thereupon, filed on January 27, 1945, an application for pre-emption in respect of the portion of the holding sold by Defendants Nos. 1 to 4 to pro forma Defendant No. 5. This application was allowed ex parte on April 23, 1945, and the Plaintiff was given delivery of possession through court on June 27, 1945. Defendants Nos. 1 to 4 then brought a Misc. case No. 374 of 1945 under Order XXI, Rule 100 of the Code of Civil Procedure on August 25, 1945. This was allowed ex parte and the Defendants were restored to possession. Then, on September 5, 1945, the suit out of which this appeal arises was instituted under Order XXI, Rule 103 of the Code of Civil Procedure. The Plaintiff in this suit challenges the ex parte order obtained by Defendants Nos. 1 to 4 in Misc. case No. 374 of 1945 as fraudulent and his further case is that Ex. A, a deed of reconveyance executed by pro forma Defendant No. 5 on March 19, 1945, during the pendency of the pre-emption proceedings is fraudulent. In this deed of reconveyance there is a recital that at the time when the conveyance in favour of pro forma Defendant No. 5 was executed by Defendants Nos. 1 to 4, there was an oral agreement regarding this reconveyance and on the basis of that in the Misc. case instituted by Defendants Nos. 1 to 4, they also made the case that there was such an oral agreement for such a reconveyance.

(3.) The defence of Defendants Nos. 1 to 4, firstly, was that Ex. A was binding on the Plaintiff and secondly, that under the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944 (Ben. Act V of 1944), the Collector having passed an order directing the restoration of the land to the vendors, the civil court had no jurisdiction to go into the matter and to interfere with that order of the Collector. The trial court decreed the suit on the findings, first, that the Plaintiff was entitled to present possession of the property on the strength of the order of preemption he had obtained, secondly, that Ex. A was not a bona fide document for consideration and thirdly, that the story of an oral agreement at the time of the conveyance in favour of pro forma Defendant No. 5 in pirsuance of which Ex. A is alleged to have been brought into existence is not true.