HENRY TIRKEY Vs. BASU ORAIN

JUDGEMENT

(1.) This appeal has been filed on behalf of the plaintiff/appellant, namely, Henry Tirkey against the judgment and decree, passed by Addl. Subordinate Judge, Ranchi by which the learned Sub-Judge dismissed the suit.

(2.) The short facts, as alleged by the plaintiff/appellant is that the plaintiff and defendant No. 3 are the sons of Bhushan Tirkey, who died in or about the year 1963-64 leaving behind the plaintiff and defendant No. 3 as the only sons who inherited the land belonging to their father Bhushan Tirkey. It is further claimed that there was a family partition of tall, the lands and properties belonging to Bhushan Tirkey in the month of January 1964 and the whole land plot No. 793, area 1.65 acres, being land of Schedule-A fell in the exclusive share of the plaintiff and since the time of partition the plaintiff is coming in exclusive possession of the suit land. The defendant No. 3 has got no title and possession over the said land. It is further claimed that defendant Nos. 1 to 3 by practising fraud, obtained a permission from the Deputy Collector, Ranch in respect of the land of Schedule-A for sale in favour of defendant Nos. 1 and 2. The defendant No. 3 was addicted to drinking wine and, as such, the defendant Nos. 1 and 2 after playing fraud, got the sale-deed executed by defendant No. 3 in respect of the land being an area of 82.1/2 decimal of plot No. 793, though defendant No. 3 has got no title and possession over the same and the sale-deed has not been acted upon and due to which the suit has been filed.

(3.) The defendant Nos. 1 and 2 filed the W.S., claiming therein that the suit is not maintainable and it is barred by the provision of Specific Relief Act. It is further claimed that actually there was a partition between the plaintiff and defendant No. 3. Both the brothers after the death of Bhushan Tirkey with respect to all the lands, including the suit land and both the parties came in possession over half and half over all the lands including the suit plot No. 793 and defendant No. 3 came in possession over the half of the said land, being an area of 82.1 /2 decimals out of total area 1.65 acres. It is further claimed that the defendant No. 3 after obtaining the sanction of the Deputy Commissioner, Ranch under Section 46 C.N.T. Act sold the said area, being 82-1/2 decimals by a registered sale-deed after payment of consideration amount of Rs. 10,000.00 and since the sale, defendant Nos, 1 and 2 are coming in peaceful possession over the said land. The defendant No. 3 had exclusive title and possession over the suit land and the sale-deed was executed by defendant No. 3 with full knowledge and even after permission, as required under Section 46 of the C.N.T. Act and so the question of fraud does not arise and, as such, the plaintiff has got no cause of action for the suit and the suit is fit to be dismissed. The defendant No. 3 did not appear in the lower Court. The learned lower Court framed the issues on the basis of the pleadings of both sides which are as follows: