KRISHNA SARDAR Vs. SINDHU BALA DASI

JUDGEMENT

(1.) This is a Letters Patent appeal against the judgment of our learned brother, Bijayesh Mukharji, J. The appellant before us was the contesting defendant in the suit, which was brought by the plaintiff-respondent for declaration of title and recovery of joint possession along with pro forma defendant No. 3.

(2.) The suit was dismissed by the two Courts below, but, in second appeal, this Court decreed the plaintiff's suit.

(3.) The whole controversy between the parties rests on the effect of a Memorandum on the rights of the parties under Section 53A of the Transfer of Property Act. That Memorandum, as we read the same, records the fact of taking of possession by the parties concerned in pursuance of an exchange or agreement of exchange, made by mem in respect of their respective properties in Pakistan and India. It is the defendant's case that, in view of the said Memorandum, he is entitled to have his possession protected under Section 53A of the Transfer of Property Act. The Memorandum has been set out in the judgment of our learned brother on a translation from the original, which is in Bengali. The translation appears to be a proper translation and, proceeding upon the same, we read the Memorandum as only a record of the fact of taking of possession by the respective parties in pursuance of an agreement for exchange. In our opinion, the said Memorandum cannot be treated either as a contract of exchange or as a deed of exchange, which, on registration, may pass title to the parties concerned. In this view, we hold that our learned brother was justified in rejecting the defence contention on this point and in decreeing the plaintiff's claim in respect of the share, claimed by him.