Decided on November 20,1970



S.N.Bagchi, J. - (1.) This appeal at the instance of the defendants 1 and 2 is against the decree passed in Title Suit No. 1145 of 1960 of the first court of the Munsif at Sealdah.
(2.) Mr. Guha, the learned counsel for the appellants-defendants in this second appeal which arises out of the Title Appeal No. 151 of 1963 has very rightly taken only one ground and that is a ground of law. Mr. Guha submitted that if the learned appellate court found that Jan Md. left three daughters, the entire suit for declaration of title and recovery of possession against his clients must fail. There is a cross-objection at the instance of the plaintiffs wherein it is stated that the finding of the appellate court that Jan Md. left three daughters was not correct.
(3.) Let me now come into the details of the suit. There are two plaintiffs, Kshitish Chandra Sen Gupta and Sm. Kusum Kumari Nath and there are several defendants of which defendants 1 and 2 Aswini and Ram Nath are the appellants. The plaintiffs started their case in respect of land measuring 16 decimal covered by C. S. Plot No. 936/1728 of Mouza Digla, P. S. Dum Dum held by one Fate Mohammad as tenant under the Tewaris. Fate Mohammad had his house and homestead on the suit land. He died leaving three sons, Mohammad Jan, Jabur Mohammad and Yusuf and daughters Nurjahan, and Karimunnessa as his heirs to succeed. They possessed the suit land, Thereafter Mohammad Jan died. His share of property was inherited by his sons, daughters and widow. The plaintiff No. 2 purchased 6 annas share in such properties from Jubur Mohammad and Karimunnessa on 5-12-57 by a registered kobala and obtained possession of the share so purchased of the land in suit, They began to reside in the house purchased. Plaintiff No. 1 purchased tenants share of the suit land from Sk. Yusuf and Nurjahan Bibi, Mohammad Jan's heir by a registered kobala dated 18-6-58 and obtained possession of one room standing on the suit land. The defendants 1 and 2, it is alleged threatened to dispossess the plaintiffs from those rooms. The plaintiffs came to know that defendant No. 1 managed to obtain a fraudulent and sham kobala on 2-9-57 from defendant No. 2, the ex-landlord of the suit land. The defendant No. 1 it is said has been possessing the suit land as trespasser without having any vestige of title. The superior interest of defendant No. 2 in the suit land, it is said, had vested in the State. The recent record of right showing the possession of defendant No. 2 in 12 decimal and of one Bhim Mondal in 4 decimal of land out of the suit land according to them is erroneous. The plaintiffs have filed the suit against the defendants leaving Bhim Mondal. The plaintiffs have filed the suit against the defendants as trespassers and prayed for declaration of title and recovery of possession as against them. In the joint written statement filed by the defendants 1 and 2, they took several pleas in defence as regards maintainability of the suit for nonjoinder of necessary parties and limitation. They, however, contended that one Rashbehari got the suit land in his share on partition with his co-sharer. Rashbehari turned to be a lunatic. One Sitanath his guardian sold the suit land to defendant No. 2 Ramnath with permission of the District Judge. Defendant No. 2 possessed the same. The defendant No. 1 purchased six cottas of land out of such property from defendant No. 2 for valuable consideration and has been in possession of the same since then. The defendants deny the truth of the story of the plaintiffs possession in and dispossession from the suit land by the defendants as set out in the plaint.;

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