MANJURAL HAQUE Vs. MEWAJAN BIBI

JUDGEMENT

(1.) This second appeal arises out of a suit for specific performance, or, in the alternative for what in substance appears to be permanent injunction, restraining the defendants from interfering with the plaintiffs' possession. The claim for specific performance was clearly barred by limitation and it was not pressed by the plaintiffs after its dismissal by the trial Court on that ground. The plaintiffs' alternative claim, however, was decreed by the learned Munsif under Section 53A, Act, and the defendants were held debarred and they were actually restrained from interfering with the plaintiffs' possession of the suit properties and/or from exercising any rights in respect thereof which might affect such possession. That decision, however, was eventually set aside by the lower appellate Court which refused to apply Section 53A to the facts of this case and, the plaintiffs' suit having been dismissed, they have now come up to this Court in Second Appeal.

(2.) The learned Munsif described the suit as rather of an unusual type. It followed as a sequel to another suit and, indeed, the litigation between the parties started sometime in 1938 and had a long and chequered career having once come up to this Court in a previous second appeal (S. A. 1311 of 1939). The present point of dispute was eventually left open by this Court on that previous occasion and the present plaintiffs who also filled the same capacity in the earlier suit (T. S. 38 of 1938) are now seeking a final decision on that point in their favour. The plaintiffs' claim is being resisted by the defendants-respondents.

(3.) From the admitted owners of the disputed properties, the plaintiffs purchased the same on 14th Magh 1341 B. S. That purchase was made by an unregistered Kobala (Ex. 1) for a sum of Rs. 49/-. This valuation, however, though less than the minimum of Rs. 100/- for compulsory registration of sale deeds under Section 17(1), Registration Act, could not cure the defect of non-registration and confer validity on the unregistered Kobala as the properties in question were permanent tenures under the Bengal Tenancy Act which could be transferred only by registered documents, irrespective of valuation, under Section 12, Bengal Tenancy Act. This has been expressly held to be so in the previous second appeal (S. A. No. 1311 of 1939) and the parties are bound by that decision. The plaintiffs, therefore, cannot claim title to the suit properties on the strength of their unregistered Kobala (Ex. 1), referred to above.