Decided on June 09,1970



- (1.) THIS appeal is by the defendant against an appellate decree, judgment being one of reversal.
(2.) SHORTLY put, the plaintiff's case in the plaint (in title suit No. 52 of 1955 in the first court of the Subordinate Judge, howrah,) is that the premises Wo. 59, Nilmony Mullick Lane, howrah was inherited by one Sm. Nithar Bala Dasi since deceased after the death of her husband, Ram Nath nandy, in widow's limited interest. The plaintiff purchased from her this property by a registered conveyance dated February 6, 1952 for Rs. 4,000/-and after her death by another registered deed of conveyance dated August 13, 1952 purchased also reversioners' interest on payment of further sum of rs. 1,500/- and thus acquired entire /16/- annas interest absolutely in the property. The plaintiff is in possession of a portion of this property on realising rents from tenants but the plaintiff's brother, defendant No. 1, who is in occupation of the first floor and a room on the ground floor of this premises as a licensee in spite of revocation of such licence instead of vacating is now claiming right, title and interest in the disputed premises to the extent of 8 annas share.
(3.) IN the written statement filed by the contesting defendant No. 1 his case, briefly, is that he and the plaintiff No. 1 agreed to purchase the property from Nithar Bala jointly in the name of their sons Santosh Kumair dey and Narayan Chandra Dey for Rs. 8,000/- and a Kobala was written on a stamp paper but owing to the plaintiff's inability to pay his share of consideration money of Rs. 4,000/- the kobala was not executed and registered. Subsequently as the defendant no. 1 paid his share of Rs. 4,000/- an agreement for sale was executed by nithar Bala in his favour pursuant to which he took possession of half of the suit premises. It was agreed further between him, Nithar Bala and the plaintiff that on payment of balance of Rs. 4,000/- by his brother Charu, plaintiff No. 1, within one year front the date of the agreement she would execute and register a Kobala in favour of both the brothers. The plaintiff no. 1 though failed to pay his share of consideration money obtained fraudulently a Kobala from Nithar Bala, an illiterate and pardanashin woman, at rs. 4,000/- for the whole property with a motive to deprive him of his half share.;

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