PULIN BEHARI BARUA Vs. KERAMAT ALI

JUDGEMENT

(1.) This appeal arises from Second Appeal No. 532 of 1970 passed by the High Court Division dated 26th April, 1982.

(2.) One Keramat Ali Sowdagar, predecessor of respondents 1(a) to 1(e) instituted a Redemption Suit No. 16 of 1965 in the 1st Court of Munsif, Patiya for redemption of mortgage of the disputed lands which, as described in two schedules, originally belonging to one Abdus Samad who mortgaged the lands to Ananda Charan Barua defendant No. 1, by executing two deeds of usufructuary mortgage on May 29, 1924. Since then defendant No. 1 has been possessing the lands. The disputed lands were put to auction in Execution Case No. 189 of 1933 which was filed against Abdus Samad and others. One Purna Chandra Sarkar auction purchased the lands on December 14, 1933 and took delivery of possession on August 20, 1935 through Court. On December 1, 1940 he sold the lands to Abul Bashar and his mother Umda Khatun. On her death Abul Bashar and her husband Jalal Ahmed sold the lands to plaintiff-respondent on September 15, 1945. Thus plaintiff by claiming to have acquired the right of redemption of the mortgage lands, approached defendants No. 1 for redemption as well as possession. But the defendant did not agree. He, therefore, filed the suit.

(3.) In his written statement defendant stated that he purchased the lands from Abdus Samad on July 19, 1936 in the benami of one Jaga Bandhu Barua and went into possession of the lands. He then filed O.S. No. 9 of 1959 against Jatish Baura, Jaga Bandhu Barua's son, who filed a solenama stating that his father was a benamdar of defendant No. 1. Defendant No.1 further contended that the Miscellaneous Case No. 116 of 1942 was filed against the plaintiff and others for the separation of jama of the disputed holding. As the plaintiff did not claim the rent of the lands in his share the jama was divided. By virtue of his purchase by the kabala and adverse possession for over the period of limitation the mortgage had been extinguished and, therefore, the plaintiff had got no right of redemption.