RADHARANI MITRA Vs. KANAKLATA ROY

JUDGEMENT

(1.) This appeal is by the defendants and it arises out of a suit for declaration of title and recovery of possession. The suit property comprises four rooms in a house, known as Lalkuthi. The nature of the controversy between the parties in the suit and in this appeal will appear from the following statements of their respective cases:

(2.) According to the plaintiffs, Lalkuthi belonged to their predecessor Ishan Chandra Mitra. Ishan died, leaving three sons, Bipin Behari, Lal Bihari and Charu Chandra. Charuchandra died, leaving a widow and a son Baidyanath and a daughter Umarani. Umarani was married to Anath Nath Roy, and they had two sons, Ashutosh and Ajit. Anath, in his turn, was a son of Jitendra Nath Roy and his elder brother was Nalini Nath Roy. The original plaintiffs in the present suit were Kanak Lata Roy, wife of Nalini Nath Roy, Umarani Roy, wife of Anath Nath Roy, and the two sons of Umarani, namely, Ashutosh and Ajit, as mentioned hereinbefore. According to the plaintiffs, in this property of Ishan, namely, Lalkuthi, - along with his (Ishan's) other properties, - Charuchandra inherited a one-third share, which devolved, upon his death, upon his widow Tarubala. Thereafter, there was a surrender by Tarubala in favour of the present plaintiffs Nos. 3 & 4 Ashutosh and Ajit, after Tarubala had got a declaration in a partition suit, Title Suit No. 29 of 1928, later on re-numbered as Title Suit No. 144 of 1930, that she had a one-third share in inter alia this property, Lalkuthi. On 9-8-1947, the said plaintiffs Nos. 3 and 4 sold the said one-third share, which, inter alia, was the subject matter of Tarubala's surrender, to Jitendra. On 22-12-1938, Jitendra auction purchased the shares of the other two brothers of Charuchandra, namely, Bipin Behari and Lal Bihari, or in other words, the remaining two-thirds of this property Lalkuthi, as part of Touzi No. 892, in which the same was situate and which was the subject-matter of Jitendra's said auction purchase. Jitendra thus became the 16 annas owner of, inter alia, Lalkuthi, which comprised the disputed rooms in the present suit. On 19-11-1940, Jitendra died and, thereupon, this property Lalkhuthi, along with Jitendra's other properties, passed to the original plaintiffs in the present suit by inheritance and the present suit was brought by them against the defendants, who were stated to be in unlawful occupation of the disputed four rooms, on 15-2-1949.

(3.) The defence, inter alia, was that Lalkuthi did not belong to Ishan but was a property, appertaining to the estate of his father Guru Charan, upon whose death it devolved upon his four sons Ishan, Girish, Harish and Mahendra. The present appellants who were the defendants in the Court of first instance, represent the branch of Harish. On this footing, the defendants (appellants) claim that they bad a one-fourth share in Lalkuthi, including the four disputed rooms. The defence further was that the plaintiffs' claim was barred by limitation and the defendants had acquired full title to the disputed four rooms and, indeed, to the whole of the Lalkuthi by adverse possession. On this defence, the two questions which arose for decision before the trial court, were the question of title and the question of possession, including the defendants' claim of adverse possession. It appears - and that is admitted by both the parties, - that, on 25-6-1880, a family fund deed (Ext. 16) was created by the tour brothers Ishan, Girish, Harish and Mahendra. In the properties, included in the aforesaid deed (Ext. 16), this Lalkuthi also was admittedly comprised. Under the said deed (Ext. 16), all the properties, covered thereby, were to be possessed and enjoyed by the four brothers jointly. The deed, however, came up ior construction in Tarubala's suit for partition, which has been referred to above and which was brought on 7-3-1928. One of the properties, included in the said suit, was this Lalkuthi and therein Tarubala claimed a one-third share as heir of Ishan through Charuchandra upon the footing that this property, along with some others, included in the said suit, belonged exclusively to Ishan.