KRISHNADHAN CHANDRA Vs. KANAILAL GHOSH

JUDGEMENT

(1.) This is an appeal by the plaintiff against concurrent judgment of affirmance. The plaintiff instituted a suit on the following allegations. The suit land belonged to Nripendra Nath Ghose and Kanai Lal Mustafi from whom the plaintiff took settlement on July 10, 1948, on payment of a selami of Rs. 185/- at an annual rental of Rs. 36/-. Since that date he had been in possession by cultivation in khas or through bargadars. The plaintiff also got his name mutated in the records of the landlord and had been paying rent in respect of the suit lands while he was in possession of the suit land in that way. On July 1, 1956 the defendants challenged title of the plaintiff in the suit land and made futile attempts of obstruction in his possession of the suit land and also thereafter the defendant threatened the plaintiff with dispossession. It was stated that the defendant had never any title or possession of the suit land and as a cloud had been cast on the plaintiff's title in respect of the suit land the plaintiff instituted this suit on July 9, 1956 claiming a declaration of his tenancy right in the suit land and also a decree confirming his possession. There was also a prayer for permanent injunction on the defendants restraining them from interfering with the plaintiff's possession.

(2.) The suit was contested by the defendants who filed a written statement denying all material allegations in the plaint. It was stated that the alleged settlement with the plaintiff was a fraudulent settlement and it was further stated that at the time when the lease was purported to have been made to the plaintiff, his lessors had no title to the suit land. In 1353/54 B. S. the said lessors of the plaintiff sold the land to one Bhudev. Bhudev again transferred the suit lands to the plaintiff's lessors by two kobalas dated June 23, 1953 and September 29, 1954. On the said respective dates again the plaintiff's lessors sold his right, title and interest to the defendants and since then the defendants had been in possession of the suit properties. It was accordingly submitted that suit should be dismissed.

(3.) It appears that an amendment was made to the plaint on November 13, 1959. It was alleged by way of further amendment of the plaint that the plaintiff's lessors fraudulently represented that they had title to the suit land and on the basis of such representation received selami from the plaintiff and gave a registered lease to the plaintiff mentioned in the plaint in 1355 B. S. and also referred to above. It appears that prior to the lease the plaintiff's lessors had sold their interest in the land to one Bhudev and thereafter Bhudev again sold the suit land to the plaintiff lessors on the dates mentioned above. Accordingly under Section 43 of the Transfer of Property Act the plaintiff's interest became absolute and as the defendants had purchased the interest of the plaintiff's lessors with the knowledge of this lease in favour of the plaintiff, they were also bound by the said lease.