KRISHNA CHANDRA DAS Vs. PURNA CHANDRA DAS

JUDGEMENT

(1.) This appeal arises out of a suit for joint possession of certain lands after declaration of title. The plaintiffs case, as stated in the plaint is as follows: The disputed lands comprising a Bastu and a small tank formerly belonged to the two brothers Kailash Nath Adhikari and Bhairab Nath Adhikari in equal shares. Kailash used to possess exclusively the northern halt portion of the Bastu land, the southern half portion of the western bank of the tank and five palm trees on the western bank and another one on the south-western corner. Bhairab used to possess the southern half of Bastu land, the northern half of the western bank of the tank and six palm trees to the south of the tank. The tank was in joint possession of both the brothers. Kailash made a gift of his moiety in favour of defendant 2 and his brother Ananda Gopal Das by a deed of gift, dated 9 Saraban 1289 B.S. Ananda left home about 25 years ago relinquishing his interest in favour of defendant 2. Defendant 2 left the village Singedda in which the disputed lands are situated for Mandunia after the death of his mother entrusting the care of his properties to the sons of Bhairab and was in Ijmali possession by enjoying the usufruct of his share of the property. On 3 Ashar 331 B.S. defendant 2 sold away his eight annas interest in the disputed lands to plaintiffs 1 and 2 and the husband of plaintiff 3 by a registered Kobala Defendant 1 claimed to have purchased the entire 16 annas interest of the suit lands and dispossessed the plaintiffs. There was a proceeding under Section 145, Criminal P. C, in which defendant 1 succeeded. On these allegations the plaintiffs brought the present suit for declaration of their title to and for recovery of joint possession of the eight annas share of the disputed lands with defendant 1.

(2.) The defence of defendant 1 is that the disputed lands originally belonged to Kailash and Bhairab in equal shares, that Kailash died without any issue and after his death Bhairab became entitled to this eight annas share by right of inheritance from Kailash and after his death his sons possessed the entire 16 annas share of the suit lands and that defendant 1 subsequently purchased the entire 16 annas interest of the said lands from the sons of Bhairab by registered Kobalas, the last of which was executed on 23 Kartic 1322 B.S. The defence further was that the title of the plaintiffs vendor and of the plaintiff, if any, was extinguished by adverse possession of Bhairab and his successors-in-interest for more than 12 years. The trial Court on a consideration of the evidence in the case came to the following findings:

(3.) (1) That defendant 1 was in exclusive possession of the suit lands for about 18 years; (2) that defendant 1 planted various trees On the eastern bank of the tank and converted it into a garden; (3) that defendant 1 re-excavated the tank; (4) that neither the plaintiffs nor their vendor had ever any possession in any part of the suit lands within 12 years from the date of the institution of the suit; (5) that the title of the plaintiffs vendor, if any, was extinguished by adverse possession of Bhairab's sons and of defendant 1; (6) that neither the plaintiffs nor their vendor were ever recognized as cosharers by defendant 1 or Bhairab's sons; (7) that Bhairab's sons or defendant 1 did not know even that the plaintiffs vendor was a cosharer. On these findings the learned Munsiff dismissed the plaintiffs suit holding that the title of the plaintiffs vendor and of the plaintiff's was extinguished by adverse possession. On appeal by the Plaintiffs the learned Subordinate Judge his not reversed the above findings of fact arrived at by the trial Court. He has however dismissed the plaintiffs claim so far as the Bastu portion of the plaint land is concerned. As regards the remaining portion of the disputed land, the lower appellate Court has decreed the plaintiffs claim. Hence the present appeal by defendant 1.