Decided on April 28,1970

Hrishikesh Bhandari Respondents


P.N. Mookerjee, J. - (1.) This appeal under Clause 15 of the Letters Patent is at the instance of the Defendants. It is directed against a decree of this Court (Chatterjee J.) decreeing the Plaintiffs' suit for inter alia declaration of their title to the disputed property and other consequential and appropriate relief 's.
(2.) The suit was decreed by the learned trial Judge but, on appeal to the first appellate Court, the said decree was reversed and, on second appeal to this Court, our learned brother Chatterjee J. set aside the decision of the first appellate Court and restored that of the learned Munsif.
(3.) The relevant facts lie within a short compass and may be stated as follows: The Defendants Appellants are the heirs of two persons, Akshoy Kumar Biswas and Benoy Kumar Biswas, who held a permanent tenure, which was mortgaged to one Bhusan Dalai. This mortgagee purchased the said tenure in execution of his mortgage decree and took delivery of possession on December 12, 1934. From this mortgagee decree -holder auction -purchaser one Sushil Adhikary purchased the said tenure by a kobala dated March 7, 1939. Under the tenure, there was a raiyati held by one Haridas Sadhukhan, which was purchased by Sushil on April 9, 1940. Thereafter, Sushil, by a - kobala dated July 17,1946, sold his entire interest to Tarapada Bhandari, father of the present Plaintiffs Respondents. In Title Suit No. 56 of 1943, the Defendants -Appellants obtained a decree for reopening the original mortgage decree of Bhusan on February 7, 1951, and under the terms of the said decree for inter alia restoration of the mortgaged property they claim to have obtained possession on April 19, 1951. Thereafter, the present Title Suit No. 445 of 1954 was instituted by the present Plaintiffs against the Defendants Appellants - for declaration of their title to the raiyati, mentioned above, namely the raiyati of Haridas Sadhukhan, purchased by Sushil Adhikari as aforesaid, and passing on them by reason of their father's purchase from Sushil.;

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