ASHUTOSH Vs. MOHAMMAD YUSUF ALI

JUDGEMENT

(1.) The significant issue that has now come to the fore in this reference to the Full Bench is whether an unregistered document regarding an agreement to exchange immoveable properties (one of them being in dispute as an evacuee property) would pass any title in the suit properties or affect the same ?

(2.) It is unnecessary to recount the somewhat tangled facts in any great detail in this Second Appeal, where the issues of fact admittedly stand concluded by the concurrent findings of both the courts below. It suffices to mention that the plaintiff-appellants had instituted the suit for a declaration of title and recovery of possession of 6 quarters standing in Plot No. 700, in Ward No. 5 of Chakradharpur Municipality in the District of Singhbhum. The case set up was that the plot aforesaid originally belonged to one Kedar Nath Tiwary, but was purchased by Shaikh Mahboob Ali in the name of his three sons by a registered sale-deed way back on 28th July, 1942. Shaikh Mahboob Ali, alias Nabu Mian, and his sons were also owners of properties in Village Kolchakra. In the wake of the partition, the said Shaikh Mahtioob Ali and his sons, designing to leave India for Pakistan, arranged with the plaintiffs to exchange the aforementioned properties with the properties of the plaintiffs in Mauzas Tabaria, Sharkhandi and Batikamari in the District of Nadia, which became part of East Pakistan and later on the Bangla Desh. Accordingly, an unregistered agreement of exchange dt. 6th Jan 1951, between the plaintiffs on one hand and the sons of Shaikh Mahboob Ali on the other was executed and the exchanges were sought to be effectuated by actual delivery of possession of the properties by one party to the other. The plaintiffs paid in cash a sum of Rs. 5,000/- also, being the difference of the respective valuation of the properties of both the parties. More than two months later, on 28th Mar. 1951, Shaikh Mahboob Ali and his sons executed a registered Power of Attorney in favour of one Dr. Satish Chandra Saha, to execute and register a sale-deed on their behalf of terms of the agreement for exchange. The plaintiffs consequently claimed to have come in possession of the above exchanged properties, including the suit properties.

(3.) It is then the case that Defendants 1 and 2 forcibly broke open the locks and trespassed on the suit properties on 5th May, 1951, despite protestations on behalf of the plaintiffs. A criminal case, under S.448 of the Penal Code, was instituted against them and they were convicted in that case, and, their appeal too was dismissed on 31st Oct. 1952, by the Additional Sessions Judge. Thereafter, the said Defendants 1 and 2 agreed to give up possession, but, retracted therefrom and a fresh case under S.448 of the Penal Code was instituted, in which also they were convicted by the trial court, but, apparently acquitted later on appeal. In the interregnum, the aforesaid two defendants inducted Defendants 37 as tenants on some portions of the suit properties.