TARUMONI MONDAL Vs. PRAFULLA KUMAR MONDAL

JUDGEMENT

(1.) These two appeals were heard analogously as those have been preferred against a common judgment dated 31 st August, 1987 passed by the Assistant District Judge, 7th Court, Alipore, District - 24 Parganas by disposing of two suits being Title Suit No.7 of 1976 and Title Suit No.83 of 1978 which were heard analogously.

(2.) The Title Suit No.7 of 1976 was filed by one Prafulla Kumar Mondal and Smt. Kalamani Mondal against Ganesh Chandra Mondal and others thereby claiming partition of their half share in the suit property on the allegation that their predecessor-in-interest, namely, Upendranath Mondal and his brother, viz. Ganesh Chandra Mondal jointly purchased the property described in the schedule to the plaint from the then Zamindars for valuable consideration of Rs. 300/- under a registered sale-deed executed on 2nd November, 1929 and thereby those two brothers jointly became absolute owners of the suit property in equal share and were in joint possession of the same by constructing structure and sheds thereon and enjoying usufructs therefrom. Upendranath Mondal, the predecessor-in-interest of the plaintiffs died in 1938 leaving the plaintiff No. 1, his only son, then aged three years and the plaintiff No.2, his widow. After the death of said Upendranath Mondal, the plaintiffs had been living in joint mess with the defendant No. 1, the Karta of the joint family, till 1964 and thereafter they were separated by the defendant No.1 and were living in separate mess. As the plaintiffs were feeling inconvenience in enjoying the property jointly, they asked the defendant No. 1 to amicably partition the property but the defendant No.1 having turned down such prayer and having filed a separate suit for eviction by describing the plaintiffs as licensee, the suit for partition was filed.

(3.) The defence taken by the defendant in the written statement was that he purchased the property for valuable consideration exclusively by his own money in his name and in the name of his elder brother, viz. Upendranath Mondal from the then Zamindars by the deed dated 2nd November, 1929 and consequently, the said Upendranath Mondal was merely a name-lender and the defendant No.1 was the real owner. It is further stated that Upendranath Mondal subsequently executed a sale-deed relinquishing his claim in favour of the defendant No. 1 and the said Upendranath Mondal purchased a separate plot from his sister, viz. Nirabala Dasi and was living there with his wife and the child by construction of a house. It is further alleged that after his death, the plaintiff No. 1 sold the entire property of Upendranath Mondal and went with his mother to reside in her paternal house at Raghunathpur, The further case of the defendant is that after purchase of the property, the defendant No. 1 mortgaged the same to the Zamindars and upon his failure to repay the mortgage-debt, he had to surrender the tenancy of the suit property to the Zamindars which was subsequently transferred to him by the Zamindars by execution of a patta in his favour. The further defence of the defendant was that in the year 1974, the plaintiff No.1 requested the defendant No.1 to allow him to stay temporarily for a period of two months in one room of the suit property for the purpose of effecting repair of his residential house at Raghunathpur and that the defendant No.1 granted licence without any fees and the period of licence having expired and the plaintiffs not having vacated the room on the suit property, the defendant No.1 had already filed a suit for eviction.