ASHUTOSH BHUNIA & ORS. Vs. BIRENDRA NATH RAY

JUDGEMENT

(1.) This appeal by the defendants is against the judgment and decree dated April 24, 1975 passed in Title Appeal No. 165 of 1974 by the Additional District Judge, 1st Court, Midnapore affirming the judgment and decree made in Title Suit No. 12 of 1973 by the Subordinate Judge, 3rd Court Midnapore.

(2.) The respondent, Birendra Nath Ray as plaintiff instituted on April 1, 1973 Title Suit No. 12 of 1973 in the 3rd Court of Subordinate Judge, Midnapore praying for declaration of title to suit land measuring 3.90 acres in Mouja Uparkuai and Makulchak, for recovery of possession, for recovery of mesne profits and also for a declaration that the defendants are not bargadars in respect of the suit land and for permanent injunction stating inter alia that the suit land belonged to plaintiff and his brother Amarendra Nath Ray, since deceased, that the plaintiff obtained the suit land exclusively on the basis of an amicable partition between him and his brother embodied in a registered deed of partition dated March 18, 1964. The plaintiff had been in khas possession of the said land till 1376 B.S. In 1376 B.S. the defendants who belonged to an aggressive political party dispossessed the plaintiff forcibly from the suit land and had misappropriated the produce of 1376 B.S. to 1378 B.S. In 1379 B.S. the defendants made an application to the Bhagchas Officer, Keshpur claiming barga right in the suit land and praying for an order to deposit the owner's share of produce. The plaintiff denied that the defendants were bargadars of the suit land under him.

(3.) The defendants by their joint written statement alleged that they had been inducted as bargadars by the plaintiff's brother Amarendra Nath Ray while they were joint in 1364 B.S. It had also been alleged that from 1964 B.S. to 1370 B.S, the defendants cultivated the suit land as bargadars and delivered bhag produce to plaintiff's elder brother Amarendra who was the Karta of the joint family without taking any receipts from him. After partition the defendants cultivated the land and delivered bhag produce to the plaintiff from 1371 B.S. to 1376 B.S. on obtaining receipts. In 1377 B.S. the plaintiff realised the owner's share of produce through his Karmachari but he did not grant any receipt. In 1378 B.S. the plaintiff on being asked by defendants refused to take delivery of bhag produce and asked them to give up possession of the suit land. The defendants deposited the owner's share of produce in 1378 and 1379 B.S. and so this suit was liable to be dismissed.