TRAILAKYANATH CHAR Vs. CHINTAMONEY DUTT

JUDGEMENT

(1.) The plaintiff's case is that his father purchased the property in suit out of his own funds and was in possession thereof since the date of purchase in Sraban 1297 and re-purchase in Falgoon 1309. The suit is for recovery of possession of the lands in suit on the strength of plaintiff's title as purchaser and also on his title by adverse possession for more than 12 years. The principal defendant (defendant No. 1) contended in his defence that the properties were the joint properties of the plaintiff's father Uday Char and his brother Dina Bandhu Char, that the two brothers were joint in mess and property and that the disputed properties were acquired with their joint fund in the plaintiff's father's name. The contesting defendant has now purchased the property under a mortgage decree against Dina Bandhu Char and he contends that the plaintiff is not entitled to the entire 16 annas of the property of the suit. There is no dispute with regards to the 8 annas share of the plaintiff in the property.

(2.) The learned Subordinate Judge in the Trial Court found for the plaintiff and decreed the suit. On appeal the learned Additional District Judge of Midnapore by his judgment dated the 16 May 1923, reversed the decree of the first Court and dismissed the plaintiff's suit.

(3.) The plaintiff has appealed and on his behalf various objections have been taken to the decision of the lower Appellate Court which will be noticed in the course of the judgment. The plaintiff's case was that his father Uday Char and his brother Dina Bandhu Char had separated sometime in 1290 before the acquisition of the present property. The Subordinate Judge accepted this version; but the learned Additional District Judge has not been able to believe it and has found, as stated by the defendant, that the separation took place sometime in 1310. The first point which the learned Judge placed before himself for decision is whether the plaintiff has got his exclusive right to the 16 annas Of the plaint lands? In considering this point he observed thus: "As regards the first point the question of separation of the brothers Dina Bandhu and Uday Char is the most important point". And on his finding that the plaintiff failed to prove that the separation took place in 1290 as alleged by him he dismissed the suit. In my opinion the determination of the question when the separation took place is not decisive of the point in issue. It has to be found that at the time of the acquisition the brothers were not only joint in mess but joint in estate and also that there were some joint funds out of which the acquisition might have been made. It is admitted that the property was purchased in the name of the plaintiff's lather Uday Char. It has been proved .by means of documentary evidence; that Uday Char sold a portion of this property subsequent to his purchase, that thereafter he took mortgage of it from the person to whom he had sold it and subsequently re-purchased this property in execution of his. Mortgage decree. He took settlement from the Burdwan Raj of two Dags of plot No. 2 of schedule ka in respect of which he in his own name had to fight a suit with some persons. These dealings of the property raise a presumption that it was, Uday a self-acquired property unless it is displaced by proof that it was acquired under such, circumstances as to raise the counter presumption that it was joint family property. Now it has not been found that it was purchased with joint funds or that there was any joint fund.