URMILA DASI Vs. PROBODH CH GHOSH

JUDGEMENT

(1.) This appeal arises out of the judgment and decree passed by the learned Additional District Judge, 9th Court, Alipore, in Title Appeal No.702 of 1976 reversing the judgment and decree passed by the learned Sub-Judge, First Court, Alipore, in Title Suit No. 4 of 1972.

(2.) The plaintiff is the appellant in the instant appeal and the title suit was instituted by the plaintiff for declaration of his title to the property in dispute as described in schedule to the plaint and also for a declaration that the defendants Nos. 1 and 2 have no right, title and interest in the suit property and the alleged sale of the disputed property by a deed dt. May 10, 1967 between the defendant Nos. 1 and 2 was not binding upon the plaintiff. The plaintiff also made prayer for recovery of the khas possession of the disputed property after evicting the defendants from the same.

(3.) The plaintiffs case is that Tulsibala the mother of the plaintiff purchased on May 12, 1941 the plot in C.S. 563 and 559 since renumbered as R.S. Dag No. 606 and 614 out of her stridhan and built a hut on the said land and thereafter lived with her husband in the said property. The plaintiff's mother also purchased in the name of the plaintiff and also for her benefit the adjacent plot being dag No.615 measuring 3 cent on June 19,1953 by another registered deed. The mother of the plaintiff Tulsi Bala had died in 1949 leaving behind the plaintiff as her sole heir in respect of the said R.S. 606 and 614 and the father of the plaintiff Dasarathi Ghosh never claimed any title to or possession of the said property in view of the fact that the said property had been purchased by Tulsi Bala out of her Stridhan. It is also the case of the plaintiff that after the death of Tulsi Bala, the plaintiffs father Dasarathi married for the second time, the defendant No.2 in 1950 and thereafter Dasarathi had died in 1951. During the revisional settlement operation, the plaintiff was a minor and without her knowledge her name was jointly recorded with defendant No. 2 in respect of the said plot comprising a tiled hut standing in R. S. Dag No. 614. The plaintiff has contended that such record having been prepared erroneously, the same should be held to be not binding on the parties. The plaintiff has also contended that her stepmother the defendant No. 2, Anila Bala after fraudulently suppressing the aforesaid facts of ownership and possession of Tulsi Bala in respect of the disputed property till her death and also inheritance by the plaintiff after the death of Tulsi Bala, sold the said property to the defendant No. 1 by registered document dt. May 10, 1967. The defendant No. 1 taking advantage of the absence of the plaintiff took over the possession of the disputed property and fixed up boundaries by constructing pillars. The plaintiff, after coming to know of such act of dispossession by the defendant No. 1 from her maternal uncle Bama Charan Ghose, had to institute the instant suit against the defendant Nos. 1 and 2. It appears that defendant No. 1 only contested the suit by filing a written statement, inter alia, denying the allegations made in the plaint. The defendant No. 2 namely, the vendor of the defendant No. 1 did not file any written statement but she deposed in the said suit as a witness of the defendant No. 1. The defendant No. 1 has contended in the written statement that Dasarathi, the father of the plaintiff was a big merchant and he had purchased the disputed property in the benami of his wife Tulsi Bala by his own fund with the intention to keep himself free from the business liabilities and also constructed a house on the said plot. The land in Dag No. 505 was also purchased later on by the said Dasarathi in the name of his daughter namely the present plaintiff, Urmila Bala, The defendant No. 1 has contended that the record of rights was correctly prepared. After the death of Dasarathi, the suit property was inherited by the plaintiff and the defendant No. 2 jointly each having 8 annas interest and the revisional record of rights has been prepared accordingly. Thereafter, there was a mutual partition between the plaintiff and the defendant No. 2 by virtue of which the disputed properties had been allotted to the defendant No. 2 exclusively and the property at Jadavpur had been allotted to the plaintiff. The defendant No. 1 has contended that by virtue of his purchase of the exclusive interest of defendant No. 2, he had acquired the valid title and as such, the suit is liable to be dismissed.