SATISH CHANDRA MAITY Vs. SAILA BALA DASSI

JUDGEMENT

(1.) This second appeal is by the defendant No. 3 of the original suit which was decreed in favour of the plaintiffs and affirmed in the first appeal. The case of the plaintiffs is that the disputed land originally belonged to one Ramanibala Dassi who made a gift of the same in favour of Gosta Behari Mondal, the predecessor-in-interest of the plaintiffs by a deed dated 9-11-1925 and Gos-tha Behari Mondal since then started possessing the same in his own right. In C.S. khatian the property was recorded in the name of Gostha and his brother Krishna. In fact Krishna had no interest therein. As Gostha was in possession of the property and nothing stood in the way of enjoying the property as his own, no step was taken for correc tion of the record of rights. In the R. S. khatian also the name of Gostha and Gokul Chandra Mondal, the son of Krishna since deceased was recorded and the said record is erroneous and without any foundation. The defendant No. 1 cannot have any title or possession in the property on the basis of the R. S. khatian. The plaintiffs are the sols heirs of Gostha and they have been in possession of the property. The defendant No. 1 disclosed that he would dispose of his share in the property and hence the plaintiffs filed the suit to remove the cloud on their property created by the R. S. khatian. Besides the defendant No. 1, the defendant No. 3 Satish Maity has been made a party because he obtained one kabala from defendant No. 1 in respect of the suit property.

(2.) Defendants Nos. 1 and 3 contested the suit. Their case is on the same line. The defence is that the suit is barred by limitation and not maintainable. Ramani-bala Dassi, the previous owner of the property, in fact made a gift of the suit property and one bastu in favour of both Gostha and his brother Krishna. Gostha treated the property as gifted to both of them and recorded the properties as such in the C. S. khatian. Moreover, Gostha treated the properties as ancestral by throwing the properties into the common stock. The R. S. khatian shows the correct state of affairs. There was a partition of the suit property between Gostha and the defendant No. 1 after the death of Krishna and the defendant No. 1 disposed of his allotment in the disputed property in favour of defe-dant No. 3 on 20-11-66. The question of adverse possession has also been pressed. As I have already stated, the defence of both the contesting defendants is the same.

(3.) The learned Munsif on consideration of the evidence on record and the facts and circumstances found that by the deed of gift Ramanibala Dassi gift-ted the property to Gostha alone and not to Krishna or anybody else. It has also been found by the learned Munsif that Gostha did not record the name of Krishna in the C. S. khatian, that Gostha alone during his lifetime had been possessing the suit property in his own right and that after his death the plaintiffs had been in possession. It has been found that the case of adverse possession is disproved and the story of partition set up in the defence is unacceptable. It is further held that in spite of the order of injunction passed against the defendants during the pendency of the suit, the defendant No. 3 dispossessed the plaintiffs from eastern side of the suit property. The suit was, therefore, decreed declaring that the plaintiffs have got 16 annas title to the suit land and that the relevant C. S. and R. S. records are erroneous. In the first appeal also the learned Additional District Judge, Hoogly who dismissed the appeal on consideration and discussion of the evidence on record also held similarly that Ramanibala Dassi gifted the property to Gostha alone, that Gostha during his lifetime possessed the suit property in his own right and not Krishna and that after his death the plaintiffs had been in possession of the suit property. It has also been found that R. S. and C. S. records are erroneous and without any basis. The story of throwing the property in the common stock by Gostha has been rejected. It has also been held that the suit is maintainable as framed.