SURENDRA MOHAN BANDAYAPADHYA Vs. LALIT MOHAN DAS

JUDGEMENT

(1.) This leave petition of the plaintiff-petitioner is for leave to appeal against the judgment and decree dated 23.04.2008 passed in Second Appeal No.435 of 1971 by a Single Bench of the High Court Division dismissing this appeal affirming the judgment and decree dated 26.5.1969 passed in Title Appeal No.2.56 of 1968 by the Subordinate Judge, 2nd Court, Faridpur, allowing the appeal dismissing the suit being Title Suit No.66 of 1967, decreed by the Munsif, 1st Court, Madaripur, vide judgment and decree dated 29.8.1968.

(2.) The predecessor of the petitioners filed Title Suit No.66 of 1967 in the Court of Additional Munsif, Madaripur, for declaration of his hostile title in the suit land and for further declaration that the rent roll as prepared in respect of the suit land has been wrongly prepared and also prayed for confirmation of possession. The plaintiff Nos.1 and 2 claimed title by way of inheritance and the plaintiff Nos.3 and 4 claimed title on the basis of auction sale in a revenue case and that the defendant Nos.3 and 4 some time after partition of India left East Pakistan for West Bengal surrendering the suit tenancy against redemption of arrear rent, in favour of the plaintiff Nos.1 and 2 in the month of Agrahayan 1350 B.S. and they never came back to this country and that the plaintiff Nos.1 and 2 took khas possession of the land and have been enjoying usufructs therefrom. The contesting defendants manufactured and forged an antedated amalnama in respect of the suit land showing the defendant Nos. 3 and 4 as grantor and the defendant No.1 as recipient and by false personification managed to file Rent Suit No.1250 of 1955 in the name of the defendant Nos. 3 and 4 and obtained a sole decree by practicing fraud upon the Court and taking advantage of the said decree, the defendant filed a Criminal Case against the plaintiff in the Court of S.D.O. Madaripur under Section 379 of the Penal Code alleging theft and taking away of crops from the suit land by the plaintiff, wherein the plaintiff was convicted and punished but on appeal was acquitted and that the appellate Court on scrutiny of the documents doubted the amalnama and observed that the defendant Nos.3 and 4 were not residing in the country after 1354 B.S. and thus found the amalnama of 1358 B.S., allegedly executed by defendant Nos. 3 and 4, to be a forged document.

(3.) The plaintiff filed Title Suit No.66 of 1967 for declaration of title and confirmation of possession in the suit land. The suit was decreed against the defendant Nos.1 and 2 on contest and ex parte against the rest. The trial Court found title and possession of the plaintiff in the suit land observing that the plaintiff became tenant under the Government by operation of law after acquisition of the rent receiving interest. The trial Court disbelieved the witnesses of the defendants since they made contradictory statements as to possession of the suit land and found the witnesses adduced by the plaintiff to corroborate the story of possession of the plaintiff in the suit land. The defendants claim of possession on the basis of settlement was disbelieved as the documents produced in support of the settlement i.e. the Amalnama and the rent receipts were found to be forged documents (Exhibits-B. B-1) and that the tenancy in respect of the suit land was surrendered in favour of the plaintiff landlord by the defendant Nos.3 and 4 before their leaving Pakistan and thus the plaintiffs were found in khas possession of the suit land and it was also found that from the deposition of the D.W. that the defendant Nos.3-4 left for West Bengal and before their departure they surrendered the tenancy in favour of the plaintiff landlords in the month of Agrahayan, 1350 B.S., which correspondence to 1943 A.D. The trial Court framed 5 issues in arriving at its decision and found that the suit was not barred by limitation and the suit was not hit by the Ordinance 1 of 1964 and that the plaintiff proved their right, title, interest, and possession in the suit land and the plaintiff succeeded to prove title and possession in the suit land and thus entitled to get a decree as prayed for. Being aggrieved the defendant Nos.1 and 2 preferred Title Appeal No. 256 of 1968 in the Court of District Judge, Faridpur, which was heard and disposed of by the learned Subordinate Judge, Faridpur, by judgment and decree dated 26.05.1969 allowing the appeal holding, amongst others, that the suit was hopelessly time barred and the defendants were in possession of the suit land since Falgoon 1358 B.S. and that the learned Munsif acted illegally in discarding the depositions of D.Ws.2-6 and 8 summarily on the plea of some discrepancies found in the depositions of defendant Nos.1 and 7, and the appellate Court further held that the depositions of P.Ws.2-6 in proving the plaintiffs possession of the suit land, though appear to be of independent witnesses, but their evidence cannot get preference to those of D.Ws. since supported by documentary evidence, marked Exhibit-B series and F, and thereby the appellate Court believed the possession of the defendant in the suit land. The appellate Court also believed the amalnama and thereby relying on the said amalnama found the title of the defendant in the suit land.