JOTINDRA BHATTACHARJEE Vs. SONA BALA BORA

JUDGEMENT

(1.) Both the appellant and respondents instituted two Title Suits against each other in the Court of District Judge/Additional Deputy Commissioner, Shillong claiming their respective right, title and interest over the same plot of land with three houses standing thereon i.e. suit land in question. The appellant filed Title Suit being T. S. No. 3(H)/78 against the respondents for declaration of right, title and interest, as absolute owner in the suit property and also for recovery of vacant possession by evicting the respondents therefrom as well as mesne profit. On the other hand, the respondents as plaintiff Nos. 1 to 5 instituted the suit being T. S. No. 12(H)/79 praying for declaration that (1) the prede- cessor-in-interest, Late Bhagirath Bora, the vendor of the appellant, had no absolute right, title and interest over the suit property even though allotment was given in his name, (2) the Sale Deed executed by him vide Sale Deed dated 21-9-77 was illegal and void, (3) Late Bora, arrayed as defendant No. I. was bound by compromise agreement dated 10-6-77 and (4) the respondents / plaintiffs had preferential right of purchase.

(2.) The brief facts, as have been noticed from the pleadings of the rival parties in both the suits and not being in dispute, are that Late Bora took settlement of the suit land, being plot No. 31 with an area of 176 acres, at Oackland, Shillong from the Govt. and Patta No. 15 dated 28-8-75 was issued in his favour. He constructed houses thereon by investing his own money and taking from the Government. He was living on a cottage in the northern portion of the land with his family i.e., respondents being his wife and children. He, being a Hindu governed by the Dayabhaga School, was the absolute owner of the suit property. On 21-9-77, the appellant purchased the suit land by a registered deed of sale for consideration of Rs. 69,000/-. After execution of such sale, the vendor on vacating the houses in question, delivered the vacant possession to the appellant but the respondents, being wife, sons and daughters of vendor Late Bora, objected to such sale and picked up quarrel with them who were residing thereon, they did not join the vendor in giving the delivery of possession of the suit property for which the appellant could not get possession of any part of the suit premises. However, the competent authority i.e., Deputy Commissioner, East Khasi Hills by his order dated 24-10-77 allowed the mutation in favour of the appellant in Mutation Case No. 99/77. Thereafter, by dint of Sale Deed as well as mutation order, the appellant got Holding No. 85 on the said premises from Shillong Municipality Board.

(3.) On the basis of the admitted factual matrix as noted above, the plaintiff filed. Title Suit being T.S. No. 3(H)/78 praying for the relief as already mentioned here in a bove and the same was resisted by the respondents by filing written statement. The respondents in their Title Suit No. 12(H)/79. reiterating the averments made in the written statement submitted in the Title Suit No. 3(H)/78, claimed that though the Patta was granted in the name of Late Bhagirath Bora, the respondents being his wife and children, made substantial contribution in terms of cash, materials and labour towards the construction of houses in question and as such, they being co-owners and having equal right over the suit property, had also right, title and interest over the same and Late Bora alone did not acquire any absolute right, title or ownership over the suit property for which he lacked any legal right to transfer the same to the appellant to the exclusion of the respondents. They also averred that soon after his retirement on 1968 Late Bora, being husband and father of the respondents, did not take any interest in the family and used to pick up quarrel with the family members off and on. He began to suffer mentally and behaved in an abnormal manner. In the year 1972/73, the mental condition of Late Bhagirath Bora further deteriorated and in the month of June, 1977, he lost his balance of mind and became so much quarrelsome that he even initiated a proceeding under Section 107, Cr. P.C. against the respondents. But somehow the said proceeding ended in a compromise to the effect that if he wanted to sell the suit property, the first offer would be given to the respondents but in fact he sold the property collusively and fraudulently to the appellant. In view of such factual background, the respondents claimed in their Title Suit that the vendor of the appellant, Late Bora had no absolute title and possession over the suit land and at that relevant time he had no saleable right and Late Bora was bound by the terms of the compromise effected between them on 10-6-77 for which the respondents had preferential right and also the right of pre-emption in the purchase of the suit property.