PARITOSH ROY Vs. SANTOSH KUMAR ROY

JUDGEMENT

(1.) THIS second appeal has arisen from the common judgment dated 8.6.2001 by the Addl. District Judge, West Tripura, Agartala in Title Appeal No. 69 of 1997 and Title Appeal No. 21 of 1998. By a reverse finding, the Title Appeal No. 69 of 1997 of the plaintiff was allowed declaring his right, title and interest in the suit land and decreeing recovery of khas possession and perpetual injunction against the defendants therein. The Title Appeal No. 21 of 1998 of the defendant was dismissed. This second appeal has been preferred by the defendants.

(2.) THE plaintiff -respondent Santosh Kumar Roy is the full - blood brother of Paritosh Roy, Ashutosh Roy, Priyatosh Roy and Smt. Monorama Roy, first, second, third and fifth appellant herein. He is the eldest son of Smt. Kamala Roy, the fourth appellant herein. When they were in a joint mess at Agartala, Santosh, the plaintiff -respondent, was posted at Melaghar in 1966 in connection with his service under the State Government while the appellants were residing at Agartala. He used to send money every month for the appellants. His mother had a plot of land at Banamalipur, Agartala which she sold for Rs. 9,000 in 1977. Thereafter, they shifted to a rented houser A joint account No. 23306 in the name of the mother and the eldest son (Santosh) was opened in the United Commercial Bank at Agartala. In the said account, his mother deposited Rs. 9,000 being sale proceeds of her land. The money sent by Santosh was also kept in the said account. Thus, when the total amount in the said account cama to be Rs. 14,400, the suit land was purchased on 19.2.1979 in the name of the plaintiff -respondent for Rs. 5,000 which was paid to the vendor from the joint account. The sale deed was executed and registered by the vendor Smt. Arati Banik on 20.2.1979. The appellants were residing in the suit land after purchase. The mother purchased another plot of land with money from the said joint account in the name of her daughter Monorama Roy, the fifth appellant. In 1990, the plaintiff -respondent applied to the Revenue authority for mutation of the said land in his name which was the first event creating discord among the family members. The appellants resisted the move before the Revenue authority and after hearing both sides the mutation was done in the name of all the appellants and the plaintiff -respondent. Aggrieved, the plaintiff -respondent travelled unsuccessfully to the appellate and revisional authority. Thereafter, he approached the Civil Judge, Jr. Division by instituting a Title Suit No. 29/1992 which was later withdrawn with liberty to file a fresh suit. Accordingly Title Suit No. 49 of 1994 was instituted seeking a declaration of title in respect of the said land and recovery of possession in respect of 'B' schedule land measuring only one ganda which is a part of the suit land specified in Schedule 'A'. The plaintiff -respondent claimed that he being the eldest son and earning member, opened the joint account with his mother so that she could operate the account in his absence and with the knowledge and consent of all the appellants, the suit land was purchased in his name with money from the joint account where money sent by him was also deposited. He being the absolute owner of the suit land by purchase for valuable consideration paid from his joint account, the question of 'Benami' transaction cannot be raised to defeat his rightful claim. The objection raised by the appellants herein before the Revenue authority against his prayer for mutation of the suit land in his name had no basis at all and, therefore, the decisions of the Revenue authority were palpably wrong. Before the learned trial court, he prayed for declaration of his title over the entire suit and, recovery of possession of the lands mentioned as 'B' schedule land and perpetual injunction restraining the appellants from disturbing his peaceful enjoyment of the suit property.

(3.) LEARNED trial court during the course of trial framed 6 issues of which issue Nos. 2 and 3 were, (2) whether the plaintiff purchased the suit land by his own money and (3) whether the plaintiff has any right, title and interest in the suit land ?