SUBUDINI KAR Vs. SABITRI RANI DEB

JUDGEMENT

(1.) s appeal filed by the appellant- defendant is directed against the judgment and decree dated 14.6.1999, passed by Civil Judge (Senior Division), Hailakandi, in Title Appeal No. 29 of 1995, reversing the judgment and decree dated 20.9.1995 passed by the Munsiff No. 2, Hailakandi in Title Suit No. 79 of 1988. The facts leading to the filing of this appeal may be stated as follows :

(2.) Makhon Lal Dey became ill sold out the suit land along with other lands to the defendant No. 3, Promobala Dey by registered sale deed dated 17.4.1974 and handed over the possession to the defendant No. 3.

(3.) Sometime in 1974 the defendant No. 3 left her homestead situated near the suit land and shifted to another place. However, while shifting, she left the suit land under the care and custody of the predecessor of defendant No. 2 (ka) to 2(cha). During the last part of 1986, defendant No. 3 the predecessor of defendant No. 2 (ka) to 2(cha) constructed a house with wooden frame with kerosene tin roofing and also constructed a hut on the eastern side and refused to hand over, the possession of the suit land. Defendant No. 3, Smti. Premobala Dev, who is the mother of the plaintiff Smti. Sabitri Rani Deb sold out the suit land to the plaintiff by registered sale deed dated 4.11.1981. Since the plaintiff failed to get the possession over the suit land from the defendants, she filed the suit for declaration that the plaintiff is the owner of the suit land by virtue of purchase, with a prayer for khas possession over the suit land by evicting the defendants from the suit land. The defendants contested the suit both in facts and in law, by filing their written statement. The defendant contended that the suit is bad for waiver estoppel and acquiescence and the suit is barred by the law of limitation. The defendant also denied the sale of the suit land to the defendant No. 3 in the year 1974 and also denied that defendant No. 3 left the suit land under the care and custody of the predecessor of the defendants No. 2(ka) to 2(cha). The defendants stated in their written statement that Jogendra Chandra Dey and Gajendra Chandra Dey were the original owners of the suit land along with other lands, and Jogendra Chandra Dey became the absolute owner of the suit land by amicable partition between two brothers, who subsequently disposed of the suit land by selling it to Makhon Lal Dey, by executing a registered sale deed on 24.3.1971. It is further contended in their written statement that Makhon Lal Dey subsequently sold out the suit land to the predecessor of the defendants No. 2(ka) to 2 (cha) at Rs. 1500/- by a registered sale deed dated 10.11.1975. The predecessor of the defendants No. 2(ka) to 2(cha) also constructed two thatched house over the suit land with bamboo and kerosene tin shed. The defendants in their written statement further stated that the purchase made by the plaintiff of the suit land from defendant No. 3 is collusive, since no consideration thereof in respect of the suit land was paid and further the plaintiff also did not record her name in the jamabandi and as such prayed for dismissal of the suit.