KHETRABASI PARIDA Vs. CHATURBHUJA PARIDA

JUDGEMENT

(1.) THIS appeal has been preferred by the unsuccessful plaintiff against a reversing judgment. His case, in brief, is that he and defendants Nos 1 and 2 are the sons of one Dinabandhu, who died in the year 1929. The suit properties described in schedules Ka, Kha and Ga were the ancestral properties of the family After dinabandhu's death, plaintiff left his house due to ill-treatment by the wives of his elder brothers (defendants Nos. 1 and 2) and was staying either at Calcutta or in the village of his maternal uncle As the family had continued possessing the suit properties jointly, he sought for partition shortly before institution of the suit Then he came to learn that even though there were no arrears of rent defendants Nos. 1 and 2 in collusion with the landlord Sm. Pramoda Devi with the object of depriving him of his legitimate share got rent suit No 6410 of 1934-35 filed against the brothers impleading the plaintiff as a minor under the guardianship of defendant No. 1, though by that date, he was a major. The collusive rent suit was decreed ex parte and in rent execution case No. 961 of 1936-37, the suit properties were put to auction and purchased benami in the name of Ganeswar, the original defendant No. 3. Subsequently, at the instance of defendants Nos. 1 and 2, Ganeswar executed a nominal sale deed in respect of the Kha schedule property in favour of defendant No. 4 and another nominal sale deed in favour of defendant No. 5 in respect of Ga schedule property. In spite of these collusive transactions, defendants Nos. 3, 4 and 5 never got possession of any portion of the suit properties and defendants Nos. 1 and 2 continued to possess them as before. Alleging that the rent decree and the execution sale are not binding on him, plaintiff seeks declaration of title to and confirmation of possession in respect of the suit properties. In the alternative, plaintiff along with defendants Nos. 1 and 2 claims to have acquired title by adverse possession having continued in possession of the suit properties in spite of the Court auction sale for more than twelve years, without interruption by assertion of hostile title. Defendants Nos. 4 and 5 alone contested the suit. Defendant No. 3, who filed a written statement, died during the pendency of the litigation and was substituted by his legal representatives who have effected a compromise in respect of the Ka schedule property. According to contesting defendants, plaintiff was a minor under the guardianship of his elder brother defendant No. 1. The landlord filed a suit as there were arrears of rent against the three brothers, obtained a decree and in execution the suit properties were put to auction and purchased by Ganeswar. After purchase Ganeswar obtained the sale certificate and delivery of possession through the Court. He remained in possession for some time by paying rent and water-rate, but subsequently sold the Kha and Ga schedule properties to defendants Nos. 4 and 5, respectively, and since their purchase they have been in possession. In short, they contend that there was no fraud nor collusion in obtaining the rent decree or in getting the properties sold in execution of the said decree and that the decree as well as the sale in the execution proceedings are valid and binding on plaintiff as well as his brothers, defendants Nos. 1 and 2. In the alternative, they say that the suit is barred by limitation and that they have acquired title by adverse possession in respect of the Kha and Ga schedule properties as they have been in possession of the same in their own right since their purchase and prior to that their vendor Ganeswar was in such possession.

(2.) THE findings of the trial Court are: firstly, that plaintiff was a major at the date of the rent suit and execution sale; secondly that the decree in the rent suit and execution proceeding are collusive and fraudulent; and thirdly, that defendant No. 1 was all along in possession of the suit properties. On these findings, it decreed the plaintiff's suit. The lower Appellate Court, while agreeing with the findings of the trial Court that plaintiff was a major at the date of the rent suit, though he was sued by being wrongly described as a minor, found that the decree in the rent suit as well as the execution proceeding are not vitiated by fraud or collusion; that defendant No. 3 since the purchase at the court auction sale and delivery of possession was in possession of the suit properties and defendants Nos. 4 and 5 came into possession and remained in possession since their respective purchases from defendant No. 3 and that the decree in the rent suit and the execution proceeding impleading plaintiff as a minor are not void. On these findings it allowed the appeal by defendants Nos. 4 and 5, so far as the Kha and Ga schedule properties are concerned

(3.) THE undisputed facts are that the suit properties described in Schedules Ka, Kha and Ga constituted the joint family properties of plaintiff and defendants Nos. 1 and 2; that the landlord filed a suit for arrears of rent, obtained a decree in execution of which the suit properties were sold and purchased by defendant No. 3 in court auction. The concurrent finding of the courts below that plaintiff was a major at the date of institution of the rent suit by the landlord Sm. Pramoda Devi is not open to challenge and has not been assailed before me. Similarly the two other findings of the lower appellate court that the decree in the rent suit and the execution proceeding in which the suit properties were sold in Court auction were not the result of fraud or collusion is also a finding of fact and as such not open to challenge in second appeal. So also the finding that defendant No. 3 came into possession of the properties since taking delivery of possession through court and defendants Nos. 4 and 5 came into possession of the Kha and Ga schedule properties since their purchase under the sale deeds (Exts. F and G) is one of fart and is not open to challenge.