MORIUM BEGUM Vs. DURGA MATHA

JUDGEMENT

(1.) This petition for leave to appeal arises out of the judgment and order dated 22 and 24-8-2006 of the High Court Division passed in Civil Revision No.637 of 2002 discharging the Rule obtained challenging the judgment and decree dated 29-10-2001 of the learned Additional District Judge, 2nd Court, Barisal passed in Title Appeal No. 35 of 1995 reversing those of dated 1-3-1995 of the learned Senior Assistant Judge, Barisal Sadar, Barisal passed in Title Suit No. 189 of 1991, decreeing the suit.

(2.) The respondent No.1, as plaintiff, filed the above Title Suit No. 189 of 1991 praying for declaration that the suit land mentioned in Ka schedule of the plaint is debottor property and also for declaration that the decree dated 17-5-1971 passed in Title Suit No. 94 of 1971 and another decree passed on 20-1-1972 in Title Suit No. 268 of 1971, both from the 2nd Court of the then Munsif, Barisal in respect of the land mentioned in schedule Ka and Ga to the plaint, are illegal, void, collusive and not binding, upon the plaintiff on the averments that the suit land belonged to Kali Ranjan, Beni Madhab, Bhuban Mohan, Mohini Mohan, Amrita Kamuari Debba, Akhoy Kumar, Monoranjan and Subodh Kumar who, on the date of Janmastami Festival of the year 1345 BS dedicated the suit land measuring .092 acres out of plot Nos. 3374 and 3375 in favour of Shree Shree Kali Mata, Shree Shree Durga Mata, Shree Shree Shitala Mata, the Bigraha, and in the suit land two temples and one Puja Mandap were established and the members of Hindu Community have been worshipping therein since 1345 BS, in RS operation the aforesaid dedicated land were wrongly recorded in the name of the aforesaid owners as their residence but however, in the remark column the word "Mandir" was recorded in plot No. 3374; the plaintiff Bigraha has been possessing suit land dedicated to it; but of the original owners Kali Ranjan died leaving behind only daughter the defendant No. 9 who died in Barisal on 28-4-44 and Beni Madhab, who was a government servant left the country before partition and died in West Bengal 25 years ago and Mohini Mohan died in West Bengal in the year 1948; Nefaz Ali Laskar, the defendant No.1 and Kashem Ali Munshi, the predecessor of the defendant Nos. 2-5 brought Civil Suit No, 268 of 1971 in the Court of the learned Munsif, Barisal for declaration of their title in the suit land on the basis of pattan from the recorded owners made in the month of Chaitra 1349 BS and the above defendant No. 1, in his individual capacity also filed Civil Suit No. 94 of 1971 in the same court for declaration of his title on the land described in Kha schedule of the plaint claiming that all the recorded owners except Kali Ranjan, made pattan of the same in his favour in the month of Baishak 1345 BS but, in fact, no such pattans were ever made and further the properties covered by both the suits being within the municipal area no such pattans could be made; further the summons of the above suits were not served upon defendants of the said suit and the plaintiffs of the above suits, on obtaining a false service returns, managed to get compromise decrees dated 20-1-72 and 17-5-71 though some of the defendants of the above suits also died before filing those suits and some of them became Indian nationals long before; Nafez Ali Laskar as well as Kashem Ali Munshi were never put into possession on the basis of the alleged pattans nor the present defendants are in possession of the suit land; the office-bearers of the Puja Committee, which was constituted for the purpose of conducting Durgapuja, being illegally influenced over by the defendants are conspiring to transfer the suit land to the principal defendants; Nidher Kumar Datta who is a Pujari, on 16-11-1991 came to learn about those decrees then he, after obtaining certified copies of the same on 27-1-1991, instituted the instant suit on obtaining permission under Order I, rule 8, CPC. The defendant No.1 and, Mariam Begum, the defendant No.41, contested the suit by filing separate written statements contending that Kali Ranjan had been in possession of the suit land which had two huts and a condemned building situated at plot No. 3365 and he, by pattan, settled the same to Nafez Ali Laskar, the defendant No.1, and Kashem Ali Munshi, the predecessor of defendant Nos. 2-5, in the first part of Chaitra 1349 BS and put them in possession and Nafez Ali Laskar and Kashem Ali Munshi paid rent for more than 12 years and then on amicable partition Nafez Ali Lasker got southern part of plot No. 3365; since the name of Nafez Ali Laskar and Kashem Ali Munshi were not recorded they filed the above Civil Suit No. 268 of 1971 challenging, the wrong recorded and the summons of the above suit, were duly served upon the defendants of the said suit and the suit was duly decreed on 20-1-72 and then Nafez Ali Laskar mutated his name and then a separate holding was prepared in his name and besides that a municipal holding was also prepared in his name and he also erected new huts after obtaining approval of plan from the municipal authority and then he made a gift of the suit land to his daughter Mariam Begum, the defendant No. 41, by registered deed of heba dated 25-5-1982; the aforesaid Kashem Ali Munshi also made a gift of his portion of the pattani land, described in Ka/Kha schedule to the plaint/ in favour of his daughter, the defendant No. 5, by a registered deed of heba dated 13-11-1983 who exchanged the same suit land with Keshabashan on 9-3-1987 and Keshabashan then sold the same to Khokan Kumar, Kartick Chandra and Tultul Mokherjee, the defendant Nos. 42, 43 and 44 respectively, and they are possessing the suit land and in the said exchange dated document Makhan Lal Chowdhury, member of the then Puja Committee of the plaintiff Bigraha, is an attesting witness; the suit land was released from VP List on 25-6-1984; the defendant No. 9, the daughter of Kali Ranjan, inherited nothing by way of inheritance and she also had no possession in the suit land but defendant Nos. 31 and 32 managed to have kabalas from her by way of false representation and then tried to mutate their names but due to objection raised by the defendant Nos. 7-8 they could not be successful and the defendant Nos. 31 and 32 also failed to obtain municipal plan in their favour and the defendant No. 9 also did not put them into possession and the so called solenama between the plaintiff and the defendant Nos. 31-32/42-44 is false and the defendant No. 41 is in possession of her part in assertion of her title and in exclusion of others for more than 12 years and the plaintiff Bigraha had no title and possession in the said land; further the suit, being a suit simpliciter, is barred under section 42 of the Specific Relief Act and the suit is also barred by limitation.

(3.) The defendant Nos.7-8 contested the suit by filing a joint written statement contending that Boni Madhav, the recorded owner, on 1-2-1944 transferred part of the suit land to the defendant No. 6 and the record of right having not been prepared in his name, the defendant, No. 6 brought Civil Suit No. 94 of 1971 which was decreed on compromise and then the defendant No. 6 mutated his name in SA Khatian and Nidher Kumar Datta, the Pujari and the representative of plaintiff; was fully aware of the same and further on 29-6-1974 the defendant No. 6, with the knowledge of Nidher Kumar Datta, transferred the suit land the defendant Nos. 7 and 8 who are possessing their respective portions by mutating their names and on payment of rents and taxes: Subodh Chowdhury Dey, an Advocate of Barisal Bar, got an order of auction sale of the suit land in Execution Case No. 23 of 1973 but the defendants saved the property from auction by depositing decretal amount and then said Sobudh Chowdhury Dey took an attempt to take lease of the suit land from VP Authority in VP Case No.1220/68-69 but these defendants released the suit land on 29-12-1979 from Board of Revenue; the husband of defendant No. 8 transferred .033 acre of land to defendant No. 39 and the plaintiff Bigraha had or has no title and possession in the scheduled land. The defendant Nos. 31, 32 filed written statements contending that the plaintiff Bigraha has a temple over suit plot No. 3374 and part of land of plot No. 3365 and the Hindu Community is using it for the purpose of worshipping and the defendant No. 9, transferred 0.030 acre of land of plot No. 3365 to the defendant Nos. 31 and 32, registered sale deeds dated 6-8-1976 and 13-11-1986 respectively and put them in possession and they are possessing their purchased land. The defendant Nos.42 and 44 filed a joint written statement contending that Kali Ranjan dedicated his share in Suit Plot No. 3374 but did not make any dedication of his share in plot Nos. 3364 and 3365 and the defendant No. 9, the daughter of said Kali Ranjan, on mutation of her name in plot Nos. 3364 and 3365 transferred 0.03 acre of land of plot No. 3364 and 0.045 acre of land of plot No. 3365 to Sufia Begum, the defendant No. 5, who purchased the same in benami of her father Abdul Majid Sharif by a registered deed dated 6-8-1976 and subsequently said Abdul Majid Sharif executed a registered Nadabipattra on 13-11-1976 in ; favour of the defendant No. 5 and thereafter defendant No. 5 transferred the same to Keshabashan by a deed of exchange dated 9-3-1987 and Keshabashan transferred the said land to defendant Nos. 42 and 44 by a registered kabala dated 18-11-1987 and 9-10-19.91 and during pendency of the suit, the plaintiff Bigraha and defendant Nos. 31-32/44 filed compromise petition wherein the plaintiff admitted the claim of defendant Nos. 31-32/42 and 44.