PANCHKARI DE Vs. THE STATE OF WEST BENGAL & ORS.
HIGH COURT OF CALCUTTA
The State of West Bengal and Ors.
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Ashamukul Pal, J. -
(1.) These are two appeals from the judgment and decree passed by the learned Additional Subordinate Judge. Bankura on 26.4.71 reversing the judgment and decree passed by the learned Munsif of the said court passed on 14.9.70 These appeals of reversal arise in the following way:-
(2.) The plaintiff filed a suit for declaration, title and/or permanent injunction against the defendant in respect of the suit land said to be acquired by the said plaintiff by deed of gift executed in its favour by the defendant no. 2 Basanti Kumari Dey. The learned Munsif held the said deed of gift was a bona fide transfer. The said deed of gift was a valid document duly executed and attested and the plaintiff' was a bona fide transferee of the same, and decreed the suit in favour of the plaintiff further declaring that he is in possession of the suit land. The learned Munsif held the plaintiff is in possession of the suit land on payment of rent to Government and he has worked out in detail giving the reasons which led him to believe and to come to a finding that the plaintiff was at all material time in possession of the land in suit and the gift was a bona fide one. By analysing the evidence and considering the probability of the case at pages 10 and 11 of the paper book the firmly has come to a finding that the plaintiff at the relevant time was in possession. At page 7 it appears that the fact of transfer is corroborated by the tact that after the transfer the plaintiff paid rent to the Government, notices of such transfer was given to JLRO and the name of the plaintiff was mutated in place of defendant no 2.
(3.) Learned Subordinate Judge however set aside the judgment and decree of the learned Munsif on the ground that although there was mutation and acceptance of rent but the deed of gilt was not a bona fide one and it was executed by her not for transferring the title to the plaintiff but for avoiding the vesting of her excess land and the plaintiff was a mere name lender. The learned Subordinate Judge first of all held that the deed of gift was not a genuine one because the defendant no 2 Basanta Kumari executed it at his request and the learned Additional District Judge further writes at page 7 of the paper book that Basanta Kumari herself has stated that she had executed the document concerned on the advice of the plaintiffs father m law for the sake of avoiding vesting and so he did not accept the learned Munsifs finding that the said deed of gift was a voluntary one. In this regard the learned Munsifs analysis may be looked into - the plaintiff was residing with the said Basanta Kumari, the defendant no 2, deed of gift was made on 24.5.60 and there is evidence that this man was looking after her. At that time Dhananjoy, son-in-law of her husbands brother not having good relationship with her stayed away and Panchkari, the plaintiff resided with her and attended to her. She filed a B Form and in the said B Form the land gifted to the plaintiff was not included. The mutation was effected in favour of the plaintiff, rent was paid by the plaintiff and duly accepted by the State, and notice was given of such transfer to JLRO. But it is said that the said deed was executed to avoid the operation of law of vesting. Learned Munsif has correctly said that before such deed of gift was made a Mazlis took place, 5/6 persons were called and thereafter the said deed of gift was executed Learned Munsif observed at page 9 of the Paper Book. "I cannot understand why defendant No 2 (Basanta Kumari) called on such 5/6 persons when she intended to do something in order to avoid the operation of law. If he actually intended to avoid the operation of law would certainly create the deed not by calling Mazlis of persons". This is not at all a probable fact and I agree with the learned Munsif in his finding.;
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