Decided on April 29,1960

Rajabala Dei Appellant
Titaram Pal Respondents


- (1.) This second appeal is by the Plaintiff and arises from a suit instituted by her for declaration of her title and recovery of possession of the property in suit after evicting Defendant No. 1 from the suit land. The suit land comprises 4,54 acres recorded in Khatian No. 114 of Mouza Kulia. The suit land comprises a raiyati jote with the rental of Rs. 23-11-1 1/2 gds. and was held by Jhetu and Chaitanya at the time when the district settlement records were prepared. Jhetu was the son of Chaitanya's brother. Netai. Both Jhetu and Chaitanya died without leaving any son to succeed them. Jhetu left a widow, Rajanibala, and two daughters, Basanti and Priyabala, by his predeceased wife. Chaitanya left a widow, Parashi. He had also a daughter, Kali. Accordingly, on the death of Jhetu and Chaitanya, their surviving widows, Rajanibala and Parashi, respectively, became the owners of their shares of the jote comprising the suit land, although each one of them had only a widow's estate. The landlord obtained a decree for arrears of rent from 1341 to 1344 B.S. in rent suit No. 1091 of 1938 of the First Court of Munsif, Tamluk. The arrears were due for the period when the widows, Rajanibala and Parashi, were in possession of the property. In execution of the rent decree, the landlord purchased the jote on December 15. 1939 and the sale was duly confirmed on January 17, 1940. The landlords took delivery of possession through court on April 20, 1940. Thereupon, according to the case of the Plaintiff. Rajanibala, the widow of Jhetu, alone took settlement of the entire jote from the landlord by an amalnama, dated April 17, 1940. at the pre-existing rate of rent and about two years later, namely on September 20, 1942 by the Kobala, ext. 1 she sold the jote to the Plaintiff. The Plaintiff claimed that she was in possession of the lands of the jote ever since and had been paying rent to the superior landlords, but that she had been dispossessed from the lands on 3rd Pous, 1358 B.S. corresponding to December 18, 1051, by Defendant No. 1, Titaram Pal, who claimed to have purchased the interest of the reversioners of Jhetu and Chaitanya, namely, Defendants Nos. 10 to 15 and Defendants Nos. 8 and 9, respectively, by two kobalas, both executed on October 3, 1951. Accordingly, the Plaintiff instituted this suit on August 15, 1953, that is, within two years of her dispossession, claiming declaration of title and recovery of possession.
(2.) The suit was contested mainly by Defendant No. 1 though Defendants Nos. 8 and 9 and Defendants Nos. 10 to 15 also appeared and filed written statements supporting Defendant No. 1. These Defendants challenged the rent decree and rent sale as fraudulent and collusive, and also alleged that Rajanibala had taken no exclusive settlement of the jote. They also claimed that even if Rajanibala had taken such a settlement after rent sale, it would enure to the benefit of all the co-sharers and, therefore, on the death of Rajanibala, the reversioners of Jhetu and Chaitanya, namely, Defendants Nos. 10 to 15 and Defendants Nos. 8 and 9 would succeed to the property and, therefore, after the death of Rajanibala, the Plaintiff could not claim any further interest and, on the other hand, Defendant No. 1, as purchaser from the reversioners, became entitled to the property and was in rightful possession from after his purchase.
(3.) The learned Munsif accepted the case of the contesting Defendants in full. Thus he held that the rent decree had been obtained collusively, and that the rent sale was brought about fraudulently and collusively, and that the subsequent settlement with Rajanibala was not a genuine settlement at all, but the old state of things continued. In the circumstances, the learned Munsif held that any transfer by Rajanibala to the Plaintiff would have the effect only during the life-time of Rajanibala, and that after her death, Defendant No. 1, who had admittedly purchased the interest of the reversioners of Jhetu and Chaitanya, had become entitled to the property and, therefore, could not be evicted from the suit land. On these findings, the learned Munsif dismissed the suit.;

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