RAJENDRA NATH MAJHI Vs. TUSTU CHARAN DAS

JUDGEMENT

(1.) The plaintiff hat alleged that the disputed property belonged to one Mahendra Das, who died leaving six sons, Sashi, Brojomohan, Chandi Charan, Tulsicharan, Tustu (defendant No. 1) and Jaoaki. Sashi is dead and Palaram (defendant No. 2) is his son. Those six brothers sold the property to Suren Das and Dulal Das. Thereafter Suren transferred his 8 annas share of his property to one Rajen. Then on the footing of a registered kabuliyat dated 9-11-1943, Rajen and Dulal settled the property to Brojomohan (Mahendranath's son) at a rental of Rs. 17-8 annas. After his death, the property devolved on his two daughters, Kamalabala (pro forma defendant No. 3) and Binabala. The latter died without any other heir and hence, her interest was inherited by her sister, Kamalabala. The latter sold the suit land to the plaintiff by a kobala dated 30-11-1961 for Rs. 1,500/-. The plaintiff is in possession of the property. But in the R.S. khatian, the land was erroneously recorded in the names of Tustu (defendant No. 1) and Palaram (defendant No. 2) at persons in permissive possession of the property. The defendants have no interest or possession. The plaintiff was threatened with dispossession. Hence the suit for an injunction on declaration of the plaintiffs title to the suit land.

(2.) Only the defendant Nos. 1 and 2 contested the suit. Their defence is that Brojomohan and they remained in joint mess and property when other brothers became separate. While they were thus in joint mess and property, the disputed land together with seme other lands was taken settlement of by them in the benami of Brojomohan for three years. Thereafter they executed a kabuliyat on 9-11-1943 for another term. The settlement was taken from the fund of the joint family of which Brojomohan was the karta. The entry in the R. S. khatian is erroneous. The plaintiff has no title of possession.

(3.) The learned Munsif accepted the defence version. So, the suit was decreed in part in respect of the plaintiffs 1/3rd share of the property. The prayer for injunction was refused. It was stated that since the settlement was taken for the benefit of the joint family, Kamala Bala was entitled to 1/3rd share. So, on the footing of the purchase, the plaintiff acquired only 1/3rd interest in the property. An appeal was filed. The learned Additional District Judge, Hooghly, stated that there was a joint family fund, but the money required for the purchase in question was no supplied from the joint family fund. Such purchase was, in fact, made, otherwise from the income of the landed property of the members of such joint family. So, the appeal was dismissed. Hence this appeal by the plaintiff.