SWAPAN ROY Vs. SHASHADHAR ROY

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 09.04.2005 passed by a Single Bench of the High Court Division in Civil Revision No.6823 of 2003 discharging the Rule.

(2.) The plaintiffs instituted Title Suit No.10 of 1991 in the Court of Assistant Judge, Khulna for partition of ejmali property and for separate saham in respect of 3.23 acres of land stating, inter alia, that an area of 13.73 acres of land recorded in C.S. Khatian No. 257/3 of Mouza Bajua under Police Station-Dacope, District-Khulna originally belonged to Satish Chandra Chattopadhaya who engaged one Modhu Sudan Mondal father of the plaintiffs as bargader by barga kabullyat dated 07.06.1926. Satish Chandra Chattopadhaya subsequently settled the suit land orally to one Pashupati Mukhpadhaya who had been possessing the suit land. Modhu Sudan Mondal father of the plaintiffs continued a bargader under Pashupati Mukhpadhaya also, Subsequently Pashupati Mukhpadhaya gave a power of attorney in favour of Satish Chandra Chattopadhaya who had been possessing the said land. Modhu Sudan Mondal died in Poush in 1335 B.S. leaving 2 sons, namely, Shashadhar Roy and Shahedev Roy the plaintiff Nos. 1 and 2 who were cultivating the land as their father used to do. The rent receipts of the plaintiffs were lost in 1971. With the consent of Pashupati Mukhpadhaya, Satish Chandra Chattopadhaya on 10.06.1957 transferred 4.49 acres of land to plaintiff Nos. 3, 2.46 acres of land to plaintiff Nos.1 and 2, 3.30 acres of land to Nawsher Ali and another 3.30 acres of land to the defendant No.7 for proper consideration. The plaintiff Nos. 1 and 2 purchased the land in benami of Md. Tabarak Hossain. Satish Chandra Chattopadhaya in lieu of kabala executed a deed of usufructuary mortgage for a term of 15 years in favour of the plaintiffs and other purchasers since there was restriction for transfer for more then 10 bighas of land at that time. In fact those deed, are sale deeds. An area of 3.90 acres of land of the plaintiffs were acquired by the Government and they had taken compensation money for the said land. Tabarak Hossain Mollah executed and registered Nadabi deed dated 01.11.1989. During the survey operation the entire 13.73 acres of land was recorded in the name of Pashupati Mukhapadhaya in S.A. Khatian. The plaintiffs have possessed the suit land for more than 12 years and the defendants had no possession over the same. One Mobinul Hague, defendant No. 7 fraudulently transferred his share of land in favour of the defendant Nos.1-4 by a kabala dated 30.9.1961 and on the basis of that kabala the defendant Nos.1 -3 got their names mutated in respect of 5.87 acres of land by filing Mutation Case No.83 8 of 1961-62 without serving any notice upon the co-sharers. Hence the suit.

(3.) The defendant Nos.1-3, 8 and 9 contested the suit by filing three sets of written statements denying the material allegations made in the plaint. Their further case is that the defendant Nos.1-3 auction purchased the land and defendant No. 8 settled 5.87 acres of land in favour of defendant Nos.1-4 and they are in possession after getting their names mutated in the records of the Revenue Department. The Plaintiffs have no possession.