RAMESWAR DAS BHIWANIWALLA Vs. BYOMKESH SAMANTA

JUDGEMENT

(1.) These two appeals arise out of Title Suit No. 95 of 1941 of the Court of the 1st Munsif at Burdwan. Second Appeal No. 1773 of 1943 is at the instance of the plaintiff. Second Appeal No. 1827 of 1943 is at the instance of the defendant. The suit was for declaration of the plaintiff's exclusive title and possession in respect of Cadastral Survey Dags Nos. 81 and 33 of khatian No. 253 of mouza Ichlabad. The plaintiff's allegation is that the plaintiff purchased the residuary share in touzi No. 147 of the Bardwan Collectorate in January 1936, the residuary share being 13 as. 6 gds. 3 karas and 3 tils, that the plaintiff obtained symbolical possession on 24th May 1936, that there was a separate account No. 16 comprising 2 gds. 2 karas 2 krantis and 2 tils share in the aforesaid touzi, the disputed lands being the lauds of the said separate account, that the defendant's predecessor held the said separate account which was closed and later on the previous owners of separate accounts Nos. 1 and 2 had their own separate account reopened, the result being that the residuary share including separate account No. 16 was brought to sale and was purchased by the plaintiff, the plaintiff's purchase taking effect under Section 28 of the Revenue Sale Law on 29th September 1935, that the defendant had failed to restore possession of the disputed lands and the plaintiff accordingly prayed for declaration of his title to the said dags and for possession of the same.

(2.) The defence to the suit was that there was no closure of separate account No. 16 as alleged in the plaint either in fact or in law, that consequently by this revenue sale at which the plaintiff purchased separate account No. 16 which had never been amalgamated with the residuary share did not pass by the sale.

(3.) The trial Court was of the opinion that the effect of the order of the Collector dated 3lst March 1932 viz., EX. 9 was to close all the separate accounts including separate account No. 16 and although there was no sale as contemplated by Section 14 of the Revenue Sale Law, as there was no attempt to supersede the order of the Collector closing the separate accounts, in proper proceedings, separate account No. 16 ceased to exist and was amalgamated with the residuary share. The sale at which the plaintiff purchased therefore passed separate account No. 16 and the plaintiff had a good title to the disputed lands. In the result the trial Court passed a decree declaring the plaintiff's title to the disputed land with the exception of the superstructures standing thereon and directed delivery of possession of the suit lands, the defendant being directed to remove the buildings standing on the disputed land. Against the decision of the trial Court, the defendant preferred an appeal.