AYUBALI SARDAR Vs. DERAJUDDIN MALLICK

JUDGEMENT

(1.) This appeal under Clause 15 of the Letters Patent is on a certificate granted by S. K. Datta, J. a learned Single Judge of this Court and is directed against the judgment and decree dated Jan. 22, 1973, passed by him in Second Appeal No. 182 of 1968. By the judgment now under appeal the learned Judge reversed the judgment and decree passed by the lower appellate court and restored those passed by the trial court.

(2.) This appeal is by defendants 3 and 4 and it arises out of a suit for declaration of title and recovery of possession after evicting the defendants from the suit land and for mean profits. The suit land is one 2.39 decimals of land out of 4.78 acres of present Dag No. 154, Khatian 71 which corresponds to old Dag No. 147 and Khatian 42 of Mouza Paschim Raghunathpur, Police Station Jaynagar, District - 24 Parganas. There is no dispute that this land once belonged to three ladies, namely, (i) Sm. Annapurna Debi, (ii) Sm. Sailabala Debi and (iii) Sm. Sumati bala Debi. According to the plaintiff-respondent this land was held in khas by the said ladies and was recorded as such in the finally published records of rights prepared under the West Bengal Estates Acquisition Act (hereinafter referred to as the said Act). The plaintiff purchased this land from the ladies on April 18, 1960, and went into possession. He was cultivating the land and was paying rent to the State of West Bengal as the superior interest vested in the State under the provisions of the said Act. One Pran Krisna Das and some of his co-sharers filed an objection under section 44 (1) of the said Act to the record so prepared in favour of the ladies claiming a goola tenancy (tenancy on payment of rent in kind) but this objection failed on merits. Pran Krisna instituted Title suit No. 343 of 1958 in the local civil court for establishing his claim of tenancy and therein prayed for an injunction to protect his alleged claim of possession. Such a prayer for injunction was concurrently overruled both by the trial court and the appellate court upon a clear finding that the plaintiff therein (Pran Krishna) had neither any prima facie title nor possession of the suit land. That suit was thereafter allowed to be dismissed for default by Pran Krishna who then effected a collusive transfer on Sept. 24, 1962 in favour of the defendants. The defendants, however, could not get any possession on such transfer and one of them defendant No. 5 executed a Nadabi on March 27, 1963 in favour of the transferor, Pran Krishna, clearly admitting therein that it is the plaintiff who is in possession of the suit land. According to the plaintiff-respondent notwithstanding the aforesaid position, the defendants having threatened to dispossess the plaintiff from the suit land he had to institute a proceeding under section 145 of the Code of Criminal Procedure wherein however, an order adverse as against the plaintiff having been passed on Oct. 21, 1963, he had to institute the present suit as by the said order the defendants have been adjudged to be in possession and there had been a prohibitory order on the plaintiff - respondent not to disturb such possession of the defendants.

(3.) This suit was contested by defendant Nos. 2, 3 and 4 who filed written statement. They denied that the suit land was in the khas possession of the ladies or that it was recorded as such in the finally published record of right. They claimed that one Annada Das, predecessor-in-interest of Pran Krishna Das and others was a Goola tenant under the ladies in respect of the suit land which was not initially recorded in the records of rights through an error but on an objection under section 44 (2A) such a tenancy was duly recorded in the finally published record of rights. An appeal against the said decision in the proceeding under Sec. 44 (2A) by Annapurna Debi and others failed. Pran Krishna Das and others being thus in possession had validly effected a transfer in favour of the defendants and they were n possession since such transfer. They further denied that there was any Nadabi executed by defendant No. 5 and alternatively it was pleaded that in case such a Nadabi is found to have been executed by defendant No. 5 then that would be a collusive one executed really at the instance of the plaintiff. This, in substance, was the defence taken by the contesting defendants in contesting the claim of the plaintiff - respondent.