HEMAYET ALI SHAIKH Vs. RAMESH CHANDRA MONDAL

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 8.3.2003 passed by the High Court Division in Civil Revision No. 1977 of 1994 making the Rule absolute upon reversing the judgment and decree dated 24.4.1994 passed by the learned Additional District Judge, Bagerhat in Title Appeal No. 212 of 1994 allowing the appeal upon reversing those of dated 18.5.1983 passed by the learned Subordinat Judge (now Joint District Jude), Bagerhat in Title Suit No. 236 of 1981 dismissing the suit.

(2.) The respondents filed to above suit for declaration of title to the suit land on the averments, inter alia, that 10.33 acres of land out of the land recorded in C.S. Khatian No. 140 and 4.31 acres of land recorded in C.S. Khatian No. 280, originally belonged to 3 full brothers, namely, Judu Nath Mondal, Paban Mondal and Gagon Mondal in equal shares; the plaintiff Nos. 1 and 2, the respondent Nos. 1-2 herein, are sons of Gagon Mondal; the plaintiff Nos. 3 and 4, the respondent Nos. 3-4 herein, are grandsons of Gagon Mondal; Paban Mondal died leaving behind a son, Banomali; Judu Nath Mondal died leaving behind a widow Totamoni, a daughter named Ayna moni and defendants Nos. 4-6 sons of Aynamoni; 10.33 acres of land of C.S. Khatian No. 140 was recorded in the name of Totamoni, Gagon Mondal and Banamali in equal share and S.A. Khatian No. 329 was also prepared in their names; 4.31 acres of land recorded in C.S. Khatian No. 280 being acquired with the income of the joint family, the name of Judu Nath Mondal was wrongly record in the aforesaid C.S. Khatian No. 280 and then during S.A. operation the said land was correctly recorded in the S.A. Khatian No. 116 in the names of Totamoni, Gagon Mondal and Banomali in equal shares; defendants No. 4-6 and Totamoni sold 3.35 acres of land from C.S. Khatian No. 140 and 1.36 acres of land from C.S. Khatian No. 280 to Gagon Mondal by a kabala dated 29.4.1963 and delivered possession thereof to him and after his death the plaintiffs have been possessing the aforesaid land but they could not withdraw the original kabala of the above sale from the concerned Sub-Registrar's office as they lost the ticket; taking advantage of the above situation the defendant Nos. 4-6 created 3 collusive kabalas in favour of defendants No. 1-3, the petitioners herein, and on the basis of those the defendants No. 1-3 on 20.12.1976 threatened to dispossess the plaintiffs from the suit land and hence the suit. The defendant Nos. 1-3, contested the suit by filing a joint written statement contending, inter alia, that the land of C.S. Khatian No. 280 was the self acquired property of Judu Nath Mondal; the kabala dated 29.4.1963 was never acted upon; defendant Nos. 4-6 sold the suit land along with other lands to defendant Nos. 1-3 by three separate kabalas dated 28.10.1976 and delivered possession thereof to them and the defendant Nos. 1-3 are in possession of the suit land and the plaintiffs having no right, title as well as possession in the suit land they were not entitled to get any relief. The learned subordinate Judge (now Joint District Judge), after hearing, decreed the suit. The defendants then preferred Title Appeal No. 212 of 1984 and the learned Additional District Judge, Bagerhat, after hearing allowed the appeal. The plaintiffs then moved the High Court Division obtained Rule in Civil Revision No. 1977 of 1994. During the pendency of the above Rule the plaintiffs filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint which was opposed by the defendants. After hearing the High Court Division allowed the said petition for amendment and on the strength of the said amendment made the Rule absolute and thereby decreed the suit of the plaintiffs in amended form.

(3.) The learned counsel for the petitioners submits that the lower appellate court, the final court of facts, having found that the suit land has not been specified and that the consideration money of the deed dated 29.4.1963 having not been passed, dismissed the suit but the High Court Division made the Rule absolute without curing the defect as to declaration of title of unspecified land and also without adverting to the issue of non-passing of the consideration money anc1 merely stating the above ground has not been raised in the written statement of the defendant Nos. 1-3.