RABINDRA NATH BISWAS Vs. NALIN CHANDRA SARKAR

JUDGEMENT

(1.) This second Appeal is directed against the judgment and decree passed by Sri A. N. Saha, learned Additional Subordinate Judge, Nadia, in Title Appeal No. 110 of 1972 reversing those passed by Sri Sukhendu Bikash Dasgupta, learned Munsif, Ranaghat, in Title Suit No. 124 of 1967/132 of 1968 and dismissing the same.

(2.) The plaintiffs filed the aforesaid Title Suit for a declaration that, the sale deeds executed by the plaintiffs in favour of the defendant No. 1 on 5-4-65 in respect of 'ka' and 'kha' schedule properties were sham/benami sale deeds and that the said sale deeds and other subsequent sale deeds executed by the defendant No. J in favour of the defendants Nos. 2 to 5 on the basis of the sale deeds dated 5-4-05 did not affect the plaintiffs' title and interest in any way in the suit properties and for injunction.

(3.) The plaintiffs' case in 4rief, was that in Chaitra, 1356 B.S. pursuant to an agreement for exchange of the lands with one Asgar Mondal, the plaintiffs who hailed from the then East Pakistan, got possession in 24.58 acres of land. Asgar Mondal, however, subsequently refused to execute the deed of exchange and the plaintiffs filed the Title Suit No. 50 of 1953 against Asgar Mondal for specific performance of the contract for exchange of the aforesaid lands. During the pendency of the suit Asgar Mondal died and his heirs were substituted. The plaintive got the exparte decree in the aforesaid Title Suit and got the deed of exchange executed through the Court in pursuance of the said ex parte decree, Asgar Mondal, filed a petition for setting aside the said ex parte decree and succeeded. The plaintiffs then got the contested decree in the said Title Suit No. 50 of 1953 and on appeal in Title Appeal No. 9 of 1964 the said decree was confirmed on 27th May., 1065. During the pendency of the appeal the heirs of Asgar Mondal threatened to forcibly oust the plaintiffs from the lands agreed to be exchanged. The plaintiffs sought the help of others including the defendant No. 1, who was the retired Military Officer, to resist the threat of the heirs of Asgar Mondal. The defendant No. 1 being a resident of the neighbouring village came forward to render help to the plaintiffs and asked the plaintiff to execute a benami sale deed in favour of the defendant No. 1 in respect of some land out of the alleged exchanged lands so that the defendant No. 1 could give a legal fight against the heirs of Asgar Mondal under the colour of the said sale deed. It was also decided that the defendant No. 1 would execute a Nadabi deed subsequently in favour of the plaintiffs. A and Al, on 5-4-65 during the pendency of the Title Appeal No. 9 of 1964 in respects of the Ka and Kha schedule properties in favour of the defendant No. 1 without any consideration. The plaintiffs had to execute two sale deeds instead of one with his own expense as the stamp paper of high denomination for one sale deed was not available. The said two sale deeds after their registration were taken and kept by the defendant No. 1 in his custody so that he might resist the threat of the heirs of Asgar Monadal to dispossess the plaintiffs from the alleged exchanged land, being armed with. the aforesaid sale deeds. The defendant No. 1 subsequently did not execute the Nadabi deed in favour of the plaintiffs nor did he return the said sale deeds, Exbts. A and A-1, to the plaintiffs. The defendant No. 1 on the other hand sold the Ka and Kha schedule properties to the defendants Nos. 2 to 5 and thereby clouded the title of the plaintiff over the suit property with the threat of dispossession from the side of the defendants. Accordingly, the present suit was filed for the relief, as already indicated.