DEBENDRANATH SHARMA Vs. NAGENDRANATH DATTA

JUDGEMENT

(1.) The plaintiffs in the suit out of which this appeal has arisen prayed for possession of the properties described in three different schedules of the plaint filed by them in Court on declaration of their title, as the reversionary heirs of one Jugalkishore Datta, of which the contesting defendants were in possession on the allegation that the defendants were in possession by virtue of sales which were inoperative and which did not in any way affect the rights of the plaintiffs as reversioners. The plaintiffs also prayed for a decree for mesne profits arising out of the properties of which the defendants were in unlawful possession. Without traversing the long history of devolution of interest as set out in the plaint, it is sufficient to state that the sales impeached by the plaintiffs in the suit were effected by Golakeshwari, a daughter of Jugalkishore Datta named above, who was admittedly the last male owner of the properties in question, and Kunjakishore, the son of Golakeshwari, the then reversionary heir of Jugalkishore, as also a sale by Tarini Dasee, the widow of Jugalkishore. The first of these two sales related to the properties described in Schs. 1 and 2 of the plaint, while the second sale by Tarini Dasee was in respect of the properties mentioned in Sch.3 of the plaint. The sales, according to the plaintiffs, did not represent bona fide transactions, were alleged to be without consideration, and it was asserted that the Hindu widows by whom the sales were effected, who were limited owners under the law, had no legal necessity for the sales, and that the estates in the possession of these limited owners were not benefited by the sales.

(2.) The claim made by the plaintiffs in the suit was resisted by the contesting defendants. The allegations made by the plaintiffs as to the nature of the transactions evidenced by the sales were denied: it was pleaded that the questions raised in the suit by the plaintiffs could not be reinstated, in view of the decision in a previous litigation in which the parties litigating in the present suit were represented. The defendants further pleaded that the sales represented bona fide transaction for good consideration, and there was legal necessity for them, so as to make the sales binding on the reversionary heirs of Jugalkishore Datta, the plaintiff in the suit. It may be mentioned that, so far as the properties described in plot 3, Sch. 3 of the plaint were concerned, the controversy between the parties related to a question of title of the plaintiffs in the same, depending upon the admission of a heba, and not merely on the question whether there was legal necessity for the sale of the properties, as it was the case in regard to the properties mentioned in Schs. 1 and 2 of the plaint. Apparently there was no contest between the parties in regard to plots 2 and 3, Sch. 3.

(3.) The material issues raised for trial in the suit were whether the sale deed, under which the answering defendants claim title to the lands in suit, confer any absolute interest in the purchaser, whether the sale of the year 1299 B.S. was for legal necessity, and, as such, binding on the reversioner, and whether the plaintiffs had "any right to and interest in the lands in suit." The trial Court gave its decision in favour of the plaintiffs, holding that the sale deed of 1299 B.S. was not for legal necessity and did not confer absolute interest, and that the plaintiffs had their right, title and interest in the lands in the suit. Apparently no distinction was made by the learned Subordinate Judge in the Court of first instance, as between the properties mentioned in the different schedules to which reference has been made already. On appeal by the defendants, the decision of the trial Court was affirmed by the learned District Judge, with the modification that the claim of plaintiffs 2, 3 and 5 was dismissed as regards a ten annas share of plot 3, Sch. 3 of the plaint, Defendant 1 in the suit has appealed to this Court, and the plaintiffs-respondents have preferred cross-objection directed against the decision of the Court of appeal below dismissing the claim of plaintiffs 2, 3 and 5 to a ten annas share for the property described as plot 3, Sch. 3.