BIPAT MAHTON Vs. KULPAT MAHTON

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit concerning 37 bighas of land once held by Tulsi Bhagat in mauza Sarouni Kalan. On the death of Tulsi in Baisakh, 1326, his widow Mt. Chando came into possession of the land; and she sold it to the plaintiff by a registered kabala executed in the following October. In 1924, there was a dispute regarding the possession of the land, which led to proceedings under Section 145, Or. P. C, before the Magistrate. There were three parties in these proceedings: (1) Bipat, the plaintiff in the present suit who relied on the sale-deed from Mt. Chando; (2) Kankal Mahton, defendant 1, who claimed as an adopted son of Tulsi: and (3) Jageshwar Mahton, defendant 2, who claimed 5 bighas out of the disputed land under a deed of sale from Tulsi. The Magistrate was unable, on the evidence produced before him, to satisfy himself as to which of the parties was then in possession of the land, and therefore attached it under Section 146, Criminal P.C.

(2.) This was in June 1924, and the present suit was brought in the following April by Bipat, basing his claim on the sale-deed from Mt. Chando and asking for a declaration of his title on the footing that Mt. Chando had sold the land to him "for satisfaction of the dues of her husband and legal debts." Kankal, defendant 1, though impleaded as a major appeared to be a minor, and a written statement was put in on his behalf by his father, Kulpat Mahton, alleging that the suit was collusive and fraudulent, that the widow had no right to sell the property and that Kankal would be greatly prejudiced if the case was allowed to go on without deciding in the first place "with whom the title to these lands goes and continues."

(3.) A reference was made in Kankal's written statement to a written statement that had been previously filed by Kulpat Mahton. alleging that he was Tulsi's father's brother's son and joint with him, that Mt. Chando, who had been married by Tulsi "in chumawan form" after the death of his first wife, had been turned out of the house by Tulsi, and had then married Jageshwar (before Tulsi's death), and that the sale deed obtained by Bipat from Mt. Chando was a nominal, baseless, illegal and wrongful deed of sale.... without any consideration and without any right and possession. The trial Court added Kulpat as a defendant, overruling the objection of the plaintiff who had himself travelled beyond the parties to the proceedings under Section 145, Criminal P.C., by impleading Jageshwar's brother Kodhil as defendant 3. As to Jageshwar and Kodhil, the plaintiff's case was that they were merely farzidars of Tulsi; and this was upheld by the trial Court and need not be further considered.