BANKA BIHAR MONDAL Vs. MD. TUFAZZEL SARDAR

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 7.2.2006 passed by a Single Bench of the High Court Division in Civil Revision No. 1401 of 1990 making the rule absolute.

(2.) The short fact leading to the filing of the leave petition is that the respondent Nos. 1 and 2 as plaintiffs tiled Title Suit No. 394 of 1984 in the court of Munsif, Sadar Court, Satkhira for a declaration of title in the suit property and permanent injunction. The land measuring 11.00 acres recorded in C.S. Khatian No.352 of mouza belonged to one Sudhir Kumar Roy Chowdhury. Sudhir Kumar Roy Chowdhury orally settled 9.64 acres of land, which is the suit land, with the plaintiffs through their fathers on 15th Baisakh 1343 B.S. on receipt of Salami of Taka 2,900/- only at an annual rental of Taka 36/- and annas 4 only. Since then the plaintiffs have been possessing the suit land by cultivating the same through their men, growing paddy and enjoying the usufructs thereof. The plaintiffs paid rents to the private landlord and obtained Dakhilas but the same were lost during the period of liberation in 1971. At the time of S.A. operation the suit land measuring 9.64 acres was not recorded in the name of the plaintiffs and as such they filed an objection case under section 19(1) of the State Acquisition and Tenancy Act being objection Case No.92 and the case was allowed and the suit land was ordered to be recorded in the name of the plaintiffs in Khatian No.357 of the suit mouza. The order was not complied with for quite some time. The plaintiffs therefore filed Miscellaneous Case No. 13 of 1982-1983 and got their names recorded in the relevant S.A. Khatian. The plaintiffs have been possessing the suit land consciously for well over 12 years adversely to the interest of all concerned on payment of rent to the Government and enjoying the usufructs and have thereby acquired a better title by adverse possession. But the defendant Nos.1 and 2 created a fraudulent and collusive power of attorney in their favour allegedly executed by Sudhir Kumar Roy in India 1965 and on the basis thereof also created two registered Kabalas in favour of defendant Nos.5 and 6. The further case of the plaintiffs is that the defendant Nos.7 and 8 illegally enlisted the suit land as vested and non-resident property. No notice was served upon the plaintiffs or any body declaring the property to be vested property. If there is any enlistment of the suit land as enemy property, the same is illegal and collusive. The defendants in collusion with each other threatened to reap and take away forcibly the paddy grown by the plaintiffs in the suit land on 18.11.1984. Thereafter the plaintiffs filed this suit for permanent injunction against the defendant Nos.1-6 restraining them from entering into the suit land and disturbing their peaceful possession and also from cutting away the standing paddy in the suit land. The plaintiffs also prayed for injunction against the defendant Nos.7 an 8 restraining them from leasing out the suit land by duplicate carbon receipt (D.C.R.)

(3.) The defendant Nos.1, 3 and 4 contested the injunction matter by filling a written objection contending that they obtained a power of attorney from Sudhir Kumar Roy Chowdhury in India in respect of the suit land and other land on 22.5.1965 and the defendant Nos.3 and 4 purchased some land from the defendant No.1 who executed the deed as constituted attorney. But as the suit land was declared as vested property they submitted a representation to the vested property authorities for release of the same. But as no title accrued to them on the basis of power of attorney, the defendant No.1 filed an application on 21.10.19 84 for taking lease of the suit land from the vested property authorities. In this written objection they also admitted that the plaintiffs have been possessing illegally for more than 12 years but such possession has not conferred any title upon them.