FANINDRA NATH DUTTA Vs. SATYA CHARAN DE

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the first Court of the Subordinate Judge at Midnapore dated 21 March 1938, in a suit to recover khas possession of half share of four C. S. plots, 1421, 1421/2040, 1422 and 1423 of Mahalla Bibigunj in Midnapur town or in the alternative for partition of the half share and for certain other reliefs. Plaintiffs case briefly stated is as follows: The disputed four plots and three adjoining O. S. Plots, viz., 1418 to 1420 form one block of land measuring six cottas in area. Half share of this block of land belonged to Nemani Chand Maity, Nabadwip Maity and Mahendra Maity and the other half share belonged to one Mohesh Chandra Mallick, father of defendants 15 to 18. Nemai Chand, Nabadwip and Mohendra sold their half share of this block of land to Hem Gopal Dutt, the maternal uncle of the plaintiffs on 3 October 1904. Hem Gopal died in 1313 B.S. (1906) without any issue. His widow Charubala Dasi inherited his properties. In the year 1927, plaintiffs as the reversioners brought a suit (Title Suit No. 140 of 1927) in the Court of the Subordinate Judge at Midnapur against the widow for appointment of a receiver and for certain other reliefs. This suit was decreed by consent. By this decree plaintiffs got all the properties left by Hem Gopal Dutt. During the pendency of this suit defendant 1 trespassed upon plaintiffs eight annas share of the disputed lands and one Jnanendra Nath Nandy, the shebait of defendant 3, trespassed upon the five annas share of the disputed land belonging to defendants 15 to 18. After the disposal of Title Suit No. 140 of 1927 plaintiffs brought a suit (Title Suit No. 374 of 1931) in the first Court of Munsiff at Midnapore against defendant 1 and the then shebaits of defendant 3. In that suit plaintiffs alleged that defendant 1 and defendant 3 were their tenants and prayed for possession of their half share through them. The defendants in that suit denied the relationship of landlord and tenant with the plaintiffs and set up an independent title. In that suit plaintiffs title to half share of the disputed plots was declared, but they failed to prove in that suit that defendants in that suit were their tenants. Defendant 2 is the wife of defendant l. Defendants 4 to 12 are the present shebaits of the deity, defendant 3. After the disposal of Title Suit No. 374 of 1931 plaintiffs asked defendants 1 to 14 to give up their eight annas share of the disputed plots but they refused to do so. Plaintiffs are, therefore, entitled to recover khas possession of the eight annas share of the disputed plots jointly with defendants 15 to 18 or in the alternative khas possession of half share of the disputed lands after partition.

(2.) Defendants 15 to 18 in their written statement support the plaintiffs case. The defence of defendants 1 to 12 is this : The plaintiffs or defendants 15 to 18 have no title to the disputed land. C. S. Dags 1425 to 1433, C. S. Plots 1421, 1421/2040, 1422, 1423 and the eastern portion of C. S. Dag No. 1424 are lands at Tahabazar known as School Bazar. These lands belong to one Earn Govinda Nandy. After his death his son Earn Narayan Nandy got eleven annas share of these lands and his brother Earn Chandra Nandy the remaining five annas share. One Chandra Shekher Nandy purchased the 11 annas share of these lands. Chandra Shekher mortgaged this 11 annas share to one Rakbal Dutt. In execution of a decree obtained by Rakhal on the basis of this mortgage, the 11 annas share of this property was sold on 21st August 1906, and was purchased by defendant l. Thereafter, by a Nirupan Potro (deed of settlement) defendant 1 transferred this property to his wife, defendant 2. Earn Chandra Nandy by his will dedicated his five annas of this property to the deity defendant 3. Defendants 4 to 12 are the present shebaits of defendant 3. Plaintiff's story of possession and dispossession is absolutely false. Defendants 1 to 12 are in possession of the disputed property in their own right. They and their predecessor in interest are in possession of the disputed lands for 40 years without any dispute to the knowledge of and adversely to the plaintiffs and their predecessors in interest.

(3.) The Subordinate Judge has found that the plaintiffs and defendants 15 to 18 have no title to the disputed lands. He has also found that the suit is barred by limitation. He has accordingly dismissed the suit. Hence this appeal by the plaintiffs. The first point for determination in this appeal is whether the plaintiffs have succeeded in proving their alleged title to the disputed land. It is not disputed in this appeal that the decision in Title suit No. 374 of 1931 of the first Court of Munsiff at Midnapore does not operate as res judicata in this suit. There is no dispute between the parties in this appeal that the half share of C. S. Plots Nos. 1418 to 1420 belonged to Nemai Chand Moiti, Nabadwip Moiti and Mohendra Moiti and that the other half share belonged to the father of defendants 15 to 18. There is also no dispute in this appeal that the half-share of these three plots was purchased by Hem Gopal from these Moities in the year 1904 and that the plaintiffs have inherited this half-share as reversionary heirs of Hem Gopal Dutt. It is also an admitted fact in this case that C. S. Plots Nos. 1425 to 1433 belong to defendants 2 and 3 and that defendants 4 to 12 are the present shebaits of defendant 3. The disputed plots are to the east of C. S. Plots Nos. 1418 to 1420. The eastern portion of a lane (C. S. Dag 1424) is to the south of the disputed plots and to the north of C. S. Plots 1425 to 1433. Plaintiffs case is that the disputed plots also belonged to Nemai Chand Moiti, Nabadwip Moiti and Mohendra Moiti and father of defendants 15 to 18 and that Hem Gopal purchased 11 annas share of the disputed plots from the Nandi along with C. S. plots Nos. 1418 to 1420 and that defendants 15 to 18 have inherited the remaining 5 annas share from their father.