BISWANATH SAHU Vs. TRIBENI MOHAN

JUDGEMENT

(1.) 1/b, 1/c and 1/d are the appellants before this Court against a confirming judgment. Plaintiff-respondent No. 1 having expired during pendency of the appeal, three of her legal heirs have been substituted in her place as respondents 1/a, 1/b and 1/c. Plaintiff had filed the suit for declaration of her title over the suit property, confirmation of possession and in the alternative for recovery of possession as well as for permanent injunction restraining the defendants from making any construction over the suit land or interfering with her possession in any manner whatsoever.

(2.) Case of the plaintiff is that the suit land originally belonged to one Ratnakar Chhotaray, Gurudeb Chhotaray and Indramani Chhotaray. The original owners for their legal necessity sold the same in favour of one Amulyanath Mitra, father of defendant No. 3 under a registered sale deed dated 11-8-1947 and after such purchase Amulyanath Mitra took possession of the land. While in possession Amulyanath Mitra for legal necessity sold the land in favour of the plaintiff on 5-12-1957 under a registered sale deed and thereafter the plaintiff remained in possession of the same. Further case of the plaintiff is that 1962 settlement proceeding was initiated in the year 1952 and plaintiff being a lady and serving outside could not take steps to get her name recorded during settlement and name of Amulyanath Mitra, her vendor, stood recorded in the 1961 settlement. After purchasing the land the plaintiff had constructed a boundary wall and a shed therein and thereafter it was leased out to different companies by the plaintiff. During the current settlement plaintiff applied for getting her name recorded in the settlement record. During this period when daughter of the plaintiff visited the suit land she found that the original defendant No. 1, after trespassing into the land was trying to construct a house over the same and on being questioned he said that the land was purchased by him from defendant No. 3. On verification the plaintiff found that though defendant No. 3 as power of attorney holder had sold the land to the plaintiff on 5-12-1957, he having no right and title over the property, again sold the same in favour of defendant No. 1 on 27-6-1980. It was found that the defendant No. 1 had sold Ac. 0.140 decimals of land from out of the suit land in favour of defendant No. 2 on 13-4-1983 and therefore the plaintiff having no other option filed the suit for the reliefs as indicated earlier.

(3.) Defendants 1/a to 1/e who are legal heirs of original defendant No. 1 as well as defendant No. 2 contested the suit by filing written statement. While denying the plaintiff's case it was contended that the father of the defendant No. 3 namely Amulyanath Mitra had purchased the land in question from the original recorded tenant on 11-8-1947 and became owner in possession of the same. Though the sale deed executed in favour of the plaintiff on 5-12-1957 is admitted in the written statement it was contended that the said sale deed was executed in order to defraud the creditors of Amulyanath Mitra and was a nominal one. This arrangement was made because Amulyanath Mitra and the plaintiff were known to each other from close quarters and Amulyanath Mitra had implicit faith on the plaintiff. This nominal sale deed was executed in order to avoid suspicion from outsiders though as a matter of fact, Amulyanath Mitra had no intention to sell the suit land at any point of time till his death in 1962. After his death in the year 1962 defendant No. 3 became the owner in possession of the disputed land. Statement of the defendant to the above is said to be acceptable on the ground that in the settlement of 1962 name of Amulyanath Mitra appeared in the record-of-rights. It is also contended in the written statement that due to want of money defendant No. 3 executed an agreement to sell the property in favour of defendant No. 1 on 2-1-1970 for a consideration of Rs. 15,000/- and ultimately the registered sale deed was executed on 27-6-1980. However, it is contended that from the date of execution of agreement for sale defendant No. 1 was in possession of the property. It is also contended in the written statement that defendant Nos. 1/b to 1/e who were in possession of the land also alienated part of the property in favour of defendant No. 2 on 13-4-1983 and since then defendant No. 2 is in possession of that portion of the property. It is also case of the defendants that they have invested huge amount of money to make the land fit for construction and that the plaintiff had no right, title and interest over the property.