DAYABATI DAS Vs. MEERA DAS
HIGH COURT OF CALCUTTA
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Sahidullah Munshi, J. -
(1.) This second appeal is at the instance of the defendant nos. 1, 2 and 3/appellants against the judgment and decree dated September 11, 2018 passed by the learned Additional District Judge, 2nd Court at Hooghly in Title Appeal No. 113 of 2006 affirming the judgment dated March 30, 2006 and decree dated April 7, 2006 passed by the learned Civil Judge (Junior Division) Additional Court at Hooghly in Title Suit No. 150 of 2003. Respondent nos. 1 and 2 were the plaintiffs before the trial Court whereas the respondent nos. 3 to 7 were defendants in the suit. Defendant nos. 3 to 7 adopted the submission of the appellants and supported the stand taken by them. Only plaintiffs/respondents contested the appeal.
(2.) According to the plaint case, the predecessor of both the plaintiffs and the defendants, namely, Prasanna Kumar Das, during his lifetime engaged his son Monimohan Das for purchase of some properties in the name of Prasanna Kumar Das with his money and to get the sale deed registered in his name. But Moni Mohan Das, with some ulterior motive, got the document in his name posing that the same was purchased by him with his own fund. After knowing this fact, Prasanna made a writing describing it to be a settlement (Swaralipi) on 26.01.1976 in respect of his own properties. The document was made in his own handwriting disclosing the mode of settlement of the properties including the suit property. In the said Swaralipi in item no.2, the suit property was mentioned, that is, a land measuring 73 Sahashrangso which was purchased in the name of Moni Mohan, lying and situated on the Southern side of the residential house at Chinsurah. According to the said terms of Swaralipi, the suit property was to be re-transferred in the name of Prasanna and as a condition precedent, the money which was lent by Moni Mohan Das for the said purchase from his fund, would be given back to him. It is the plaint case that the other terms in the settlement had been performed by Moni Mohan by transferring the property at Bagulakhali in the name of his five brothers and a Deed of Exchange was made with Prasanna in respect of a property adjacent to the suit property on 26.05.1980. During his lifetime, whereas the term no.2 was not performed by Moni Mohan, although, he was obliged to execute a Deed of Transfer of the suit property in the name of Prasanna. It is stated that the said transfer would not be materialised during his lifetime as Moni Mohan fell ill. After demise of Moni Mohan, the plaintiffs requested the defendants, that is, the legal heirs of Moni Mohan, to execute and register a Deed in their name in respect of the suit property but the defendants, on one pretext or the other avoided the plaintiff and, ultimately, refused to execute the same.
(3.) According to the plaintiff, cause of action arose on diverse dates but first such cause of action arose on 25th December, 1990 and thereafter again on 08.10.1991 when defendants made an attempt to get sanctioned plan in their name from Hooghly-Chinsurah Municipality and lastly on 16.09.1994, when the defendants refused to settle the dispute amicably. Trial Court, on consideration of the evidence on pleadings and the evidence adduced by the plaintiff, decreed the suit in part holding that Moni Mohan, since deceased, was under obligation to convey the suit property in the name of his other brothers who are the legal heirs of Prasanna in accordance with the terms and conditions of the said Swaralipi. In support of such finding the trial Court held that the parties admitted the Swaralipi and in fact, acted on the basis thereof by executing the Deed of Exchange. Therefore, according to the trial Court, the Swaralipi was binding upon both the parties. The first Appellate Court affirmed the decree.;
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