GAJENDRA NATH MAHANTA Vs. PRANPATI CHOUDHURY

JUDGEMENT

(1.) Present second appeal has been filed by the defendant against concurrent judgment and decree passed both by the trial Court and the lower appellate Court decreeing plaintiff- respondent's suit for the grant of declaration of title and for delivery of khas possession and further for payment of mesne profit of Rs.240/- for the year 1381 B.S.

(2.) Title Suit No. 34 of 1975 was filed by plaintiff-respondent Sri Pranpati Choudhury on the following facts. The suit land belonged to his father late Dharma Kanta Choudhury who had admitted the defendant No. 1 as Ms adhiar in the land in suit. The defendant transferred his possessory right by executing registered sale deed on 25th February, 1954 in favour of Anandi Ram Choudhury after receiving consideration for the said sale. Shri Anandi Ram Choudhury became adhiar by virtue of transfer in his favour of vide Ext, 2. After his death, his son Kanak Choudhury came into possession over the suit land as adhiar. While he was in possession of the suit land, Kanak Chandra Choudhury released the suit land in favour of the plaintiff by an unregistered deed executed by him on 30.1.1974 (Ext. 4). By virtue of the deed of release executed by Kanak Choudhury the plaintiff came into possession of the suit land and subsequently admitted defendant No. 3 as adhiar of the suit land. He was thus in exclusive possession with title over the suit land through proforma defendant No. 3 as adhiar. It was further allegedly the plaintiff- respondent that the defendant No. 1 forcibly cut and removed the paddy from the suit land on 1.1.1974 which gave rise to a criminal case which was filed against the defendant- appellant. The criminal case however, ended in the acquittal of the defendant. The defendant No. 3 grew Sali paddy in the land in suit as adhiar. But he did not give the plaintiffs share in the said Sali paddy on the advice/influence of the defendant No. 1. Hence, the suit. Apart from seeking declaration of right and title over the suit land, the plaintiff also claimed delivery of khas possession in case he is not possessing the said suit land and the payment of mesne profit of Rs.240/- in regard to the 1373 B.S. The suit was contested only by defendant No. 1, the appellant herein. Other defendants though filed written statement separately but supported the case of the plaintiff.

(3.) In his written statement the appellant asserted that he was in possession of the suit land for a long time without any interruption from anyone. He denied that he had executed sale deed (Ext. 2) or that Anandi Ram Choudhury even came into possession of the suit land as adhiar or otherwise. He also denied execution of deed of surrender by Kanak Choudhury, son of Anandi Ram Choudhury whose possession was also denied. The appellant thus challenged the execution of Ext. 2 and Ext. 4 and also denied his signature on Ext. 2 and maintained that he was in exclusive possession over the suit land since long time. Apart from the above, the appellant further claimed that for some time he paid rent to Dharma Kanta. But after sometime he stopped paying rent and was in exclusive possession of the land in his own right. He, therefore, denied the claim of title over the suit land which was set up by plaintiff-respondent. The suit was decreed by the trial Court on the ground. inter alia, that the appellant had admitted execution of sale deed, Ext. 2 in favour of Anandi Ram Choudhury based on the above: statement of admission by the appellant the trial Court further presumed genuineness of the transfer deed/surrender deed. Ext. 4 which was allegedly executed by Kanak Choudhury in favour of the plaintiff. The judgment and order dated 7.9.91 passed by the trial Court was challenged by the appellant by filing appeal under Section 96 of the Code of Civil Procedure. The learned Assistant District Judge, who decided the appeal, except for expressing his disagreement with some of the findings recorded by the learned Munsiff dismissed the appeal upholding the judgment and decree passed by the trial Court. Hence, the present appeal.