LAKSHMI KANTA DEB Vs. SUBHASHINI DEB AND ORS.

JUDGEMENT

(1.) This is plaintiffs' appeal against the judgment and decree dated 23.11.79 passed by the learned Assistant District Judge No.2, Cachar at Silchar.

(2.) The plaintiff appellant had filed the suit for declaration of rights of ownership to land in Schedule and as mortgagee of the land in Schedule II annexed with the plaint, for its khas possession, for declaration that the defendant No. 1 had no right or possession in the land of R.S. Patta No. 32 and that the proceeding in perfect partition case No. 41 of 1962-63 was illegal and fraudulent

(3.) The plaintiffs case was that the land in suit was originally in R.S. Patta No. 32 and subsequently in R.S. Patta No. 35. The land belonged to the defendant no.1 and the defendant No. 2 who were sisters. The defendant no.1 had transferred by sale deed on 6.9.1950 B.S. her entire share in the said patta in favour of her sister the defendant no. 2. The defendant no.2 did not take steps to get her name mutated in the Jamabandi. The name of defendant no. 1 continued as Co-pattadar. On 31.3.1958 the defendant no.2 had transferred by sale the land in schedule to the plaintiff and relinquished possession. The plaintiff then raised houses in one part of the suit land and had been enjoying the property. The defendant no. 2 also sold some other land of the suit patta in favour of proforma defendants nos. 3 to 6 and they had been in possession of their respective land. On 6.7.1962 the defendant no. 2 took loan of Rs. 175.00 from the plaintiff and Mortgaged the land of schedule II by mortgage deed in favour of the plaintiff and since then the plaintiff had been in possession of the said land. The defendant no.1 had no right or possession in the suit land but taking advantage of the continuance of her name in the revenue records in collusion with the defendant no. 2, the defendant no.1 had filed a perfect partition case before the Collector. The plaintiff had filed objection, but it was rejected. The plaintiff preferred P.P. Appeal No. 5 of 1966-67, but the appeal was also rejected on 4-5-1967. Hence, the suit. The defendant no.1 and 2 in their joint written statement stated that both of them were minor on 6-9-1950 B.S. The defendant no.1 had no legal right to sell nor was there any need for sale of her share. The defendant no.1 never sold the land to defendant no.2. The plaintiff had not acquired any or possession over the land in suit. The plaintiff accordingly could not get the reliefs.