BIJAY KRISHNA PARAMANYA Vs. KALI CHARAN MONDAL

JUDGEMENT

(1.) This appeal is by the plaintiff and it arises out of a suit for declaration of title to certain land described in the schedule to the plaint, alternatively, for partition of 4.30 acres of land in the plaintiff's share.

(2.) The plaintiff's case in brief is as follows: Plots Nos. 1067, 1094, 1095 and 1084 having a total area of 20.12 acres with a jama of Rs. 77-11-3 p. described in schedule Kha to the plaint belonged to defendants Nos. 2, 3, 4 and their mother Subasini. The defendant No. 1 is the husband of Subasini and the defendants Nos. 2 to 6 are her sons. Subasini is now dead. The defendant No. 2 was in possession of his share of land by amicable partition with his co-sharers. The plaintiff No. 2 and one Jogendra Nath Burman purchased the specific 4.30 acres of land from the defendant No. 2 by a kobala dated May 3, 1954 corresponding to 20th Baisakh, 1361 B. S. In the said kobala through inadvertence Ejamali possession was noted. Out of the entire 20.12 acres of land of the Kha schedule 17.04 acres described in the schedule Kha (1) have been recorded in the recent R. S. Khatian No. 588 having a jama -of Rs. 74-14 annas. In the said Khatian the plaintiff No. 2 and Jogendra have been recorded as owners of 4 as. 1 gd. 1 kr. 1 kranti share of the land of the said Khatian with a remark regarding their exclusive possession of 4.35 acres of land of plot No. 1084. By a kobala dated May 8, 1958 corresponding to 25th Baisakh, 1365 B. S. Jogendra sold his share to the plaintiff No. 1. The two plaintiffs thus became the owners of the disputed 4.35 acres of land of plot No. 1084 described in Schedule Ka, The plaintiffs alleged that they were in possession of the Ka schedule land by cultivating the same. In 1373 B. S. the plaintiffs grew paddy on Ka schedule land but defendants Nos. 1 to 4 forcibly cut the paddy and took away the same from a portion of the plot. The plaintiff No. 2 filed a criminal case but the accused persons were acquitted. Being emboldened by the decision of the Criminal Court the defendants tried to obstruct the plaintiffs' possession in the Ka schedule land and they gave out that they would harvest the paddy from the said land. With this allegation the plaintiff instituted the suit for declaration of title to Ka schedule land and for a permanent injunction restraining the defendants from interfering with the possession in the said land. Alternatively, a prayer was made for partition of the land of schedule Kha (1) and for separate allotment of 4.30 acres of land to them.

(3.) The suit was contested by the defendants Nos. 1 to 6 by filing a joint written statement. The defendants denied the material allegation in the plaint. They denied that the plaintiffs have any title to or possession in the suit land or that they have any share in the same. The defence case is that after the partition of Bengal in 1947 the defendant No. 1 acquired the suit property along with other land with his money in the benami of his wife Subhasini and his son the defendant No. 2. The plaintiff No. 2 and Jogendra who are relations of defendant No. 1 was aware of this fact. The defendant No. 1 was living in East Bengal even after the acquisition of the properties but the family of defendant No. 1 was residing in West Bengal. It was alleged that the defendant No. 1 being in need of money approached the plaintiff No. 2 and Jogendra for a loan. The plaintiff No. 2 and Jogendra suggested that as a security for the loan the defendant No. 2 in whose name the property stood should execute a document in their favour and that they would return the document to the defendant No. 2 with the necessary endorsement when the loan would be repaid with interest. It was further alleged that it was agreed that the suit land would remain in possession of the defendant No. 1. The defendant No. 1 agreed to the said proposal whereupon the plaintiff No. 2 and Jogendra advanced a loan of Rs. 2,000/- to the defendant No. 1 on defendant No. 2 executing a document in favour of the plaintiff No. 2 and said Jogendra on 3rd May, 1954. It was further alleged that the defendant No. 1 continued to possess the suit land along with other co-sharers even after the execution of the said document by the defendant No. 2. In Magh 1363 B. S. the defendant No. 1 sent Rs. 2,700/- from East Pakistan through one Kartik Chandra Koyal for payment to the plaintiff No. 2 and Jogendra on account of the principal amount of the loan together with interest thereon. The said Kartick Koyal and the defendant No. 2 paid the said amount to the plaintiff No. 2 and Jogendra in the month of Magh, 1363 B. S. Plaintiff No. 1 and the plaintiff No. 2 and Jogendra made endorsement on the back of the original document and handed over the same to Kartik Chandra Koyal in the presence of defendant No. 2. It was alleged that the defendant No. 1 lost the original deed and he asked the plaintiff No. 2 and Jogendra to execute a deed of Reconveyance in favour of the defendant No. I who was the real owner of the properties. It was alleged that the plaintiffs realising that the defendant No. 1 lost the original document conspired to grab the disputed property and with that end in view the plaintiffs got a kobala executed by Jogendra in favour of the plaintiff No. 1 and the plaintiffs thereupon started the present suit on a false claim. It was alleged by the defendants that at the material time the defendant No. 2 was a minor and as such he had no legal capacity to execute the document in favour of the plaintiff No. 2 and Jogendra. The plaintiff's claim that the defendant No. 2 was in separate possession by virtue of amicable partition with his co-sharers was also denied.