BIBHUTI BHUSAN MODAK Vs. GIRISH CHANDRA PAL

JUDGEMENT

(1.) These two appeals arise out of the same judgment and have been heard together. This judgment will govern both the appeals, though I propose, for the sake of convenience, to deal with them separately.

(2.) In Second Appeal no. 203, the plaintiffs are the appellants, and the land involved is plot No. 1068. In second Appeal No. 564, the defendants are the appellants; and the plot involved is 1113. The facts so far as they are relevant for the two appeals are the following; One Bhikhu Mandal wag the recorded tenant of holding No. 37 of village Nirsa in which holding were included the two plots in question. Bhikhu died some fourteen years before the suits were instituted, leaving a minor son called Kalipada, and his widow, Jamuna Mandalani. During the minority of Kalipada, Jamuna sold the two plots along with some other land to one Shambhu Mahto by means of a sale-deed executed on 29th April 1932. On 16th April 1943, sometime after Kalipada had attained majority, Kalipada executed an agreement to sell the lands to the plaintiffs. The case of the plaintiffs was that a sum of Rs. 50 was paid at the time of the agreement, and the plaintiffs were put in possession of the lands. On 13th September 1943, Kalipada executed a sale-deed in favour of the plaintiffs, who then paid the balance of the consideration. The plaintiffs remained in possession, but after a proceeding under Section 144, Criminal P. C., they were dispossessed in 1351 F. from one plot, and in 1352 F, from the other plot. The plaintiffs then brought the two suits for a declaration of their title and recovery of possession. The defendants were different in the two suits. In suit No. 134 of 1945, out of which has arisen Second Appeal No. 203 of this Court, the defendant was Girish Chandra Pal. His case was that Jamuna Mandalani executed a sale-deed in 1932 as guardian of Kalipada for legal necessity, and Shambhu came in possession as owner on the strength of that sale-deed. On 2nd September 1943, Shambhu and Kalipada jointly executed a sale deed in favour of Girish Chandra Pal in respect of plot No. 1068. The sale-deed was, therefore, prior in time to the sale-deed in favour of the plaintiffs, though, it was registered on 14th September 1943. Girish Chandra Pal based his title on the said sale-deed of 2nd September 1943. Ha raised various other pleas such as limitation etc., and also pleaded that the agreement dated 16th April 1913, was fraudulent, without consideration and antedated. The defendants in Suit No. 133, relied on another sale-deed, dated 14th September 1943, executed by Shambhu Mahto in favour of Sumitra, one of the defendants, in respect of plot No. 1113. This sale-deed was subsequent to the sale-deed in favour of the plaintiffs; and another distinguishing feature of this sale-deed from the sale-deed in favour of Girish Chandra Pal was that it was executed by Shambhu Mahto alone, and Kalipada was no party to this sale-deed of 14th September 1943.

(3.) The learned Munsif disbelieved the story of possession and dispossession which the plaintiffs alleged. He found that Shambhu was in possession since the sale-deed in his favour in 1932, either directly or through a mortgagee, and that the plaintiffs were never in possession. But the learned Munsif held that Shambhu acquired no title on the strength of the sale-deed executed by Jamuna Mandalani in 1932, and therefore the defendants also acquired no title on the strength of their purchase from Shambhu. On the question of limitation the learned Munsif considered only Article 144, Limitation Act, and held that as Jamuna sold the property as her own property and not as guardian of her minor son, the sale by her was absolutely void, and it was not necessary for the minor Kalipada to set it aside within three years from the attainment of majority. On these findings, the learned Munsif held that the plaintiffs acquired good title by the sale in their favour by Kalipada on 13th September 1943, and he decreed the suits accordingly.