PROVA RANI ADHIKARI Vs. LALIT MOHINI MITRA

JUDGEMENT

(1.) This is the plaintitf's appeal, arising out of suit for declaration of title and recovery of possession and damages. The suit was decreed by the trial court, but that decision was reversed by the learned lower appellate court and the plaintiffs suit was dismissed. Aggrieved by that decision, the present appeal was filed by the plaintiff.

(2.) The relevant facts lie within a short compass and they may be stated as follows: The property in suit originally belonged to one Arun Chandra Dutta. By a Kobala, dated 4-10-1950, the plaintiff claims to have purchased the property and, thereafter, on 4-5-1954, she brought the present suit for recovery of possession of the disputed property from the defendant, on the allegations, inter alia, that the defendant was in occupation of the same without any title whatsoever and that the plaintiff was entitled to a declaration of title and also to recovery of possession as against her. In the meantime, there were some proceedings between the parties, to which reference will be made in due course in course of this judgment.

(3.) The principal defence was one under Section 53A of the Transfer of Property Act and the defendant contended that, long before the plaintiff's aforesaid purchase on 16-12-1947, the plaintiff's vendor Arun entered into an agreement with the defendant, who was his aunt, for sale of the disputed property to her for a consideration of Rs. 18,000/- and, on that agreement, on different dates, a total sum to the extent of roughly Rs. 4,000/- was paid by the defendant to Arun in part payment of the said stipulated consideration money. It was also alleged by the defence that, at some later stage, Arun agreed to receive a reduced consideration for the property, viz., Rs. 12,000/-. The defendant contended that she was, at the time of her aforesaid agreement, already in possession of the disputed property as a licensee from Arun and that she continued her possession of the suit property in part performance of the aforesaid agreement between herself and Arun and also did further acts in performance of the same by further payments to Arun under the said agreement. The defendant also stated in her written statement that she was willing to perform her outstanding part of the agreement with Arun. The defence further contended that the plaintiff in the present case was not a bona fide transferee for value without notice of her (defendant's) aforesaid agreement, but was a transferee with notice of the same and so she (plaintiff) would not get the protection or benefit of the proviso to Section 53A of the Transfer of Property Act. A further defence was taken in the written statement that, by reason of the dismissal of a previous suit for ejectment of the defendant from the suit premises, which was brought by the plaintiff on the allegation that the defendant was a tenant, which allegation was subsequently sought to be amended into one of a licensee, the present suit was barred by res judicata - at least constructive. All these defences were overruled by the learned Subordinate Judge and the plaintiff's suit was decreed.