Decided on June 11,1975

Praneswar Das And Others Appellant
Abharsharam Boj And Others Respondents


Baharul Islam, J. - (1.) THE plaintiff filed the suit, out of which the present appeal arises, in the Court of the Assistant District Judge No. 1 at Gauhati, for a declaration that the purchase of the land described in the schedule 'A' to the plaint by the registered deed dated 3 -12 -1927 in the name of Dukhuram was a benami purchase by, on behalf of, and for the plaintiff; for a declaration that the sale of the lands described in schedule 'C' to the plaint to defendant No. 4 by Rangila by a registered deed dated 1 -12 -1959 was fraudulent and null and void; for a declaration that the decree granting Letters of Administration in favour of defendants Nos. 1 to 3 by the Additional District Judge, Gauhati in T.S. (Probate) No. 10 of 1962 in respect of the 'B' schedule land was not binding on the plaintiff; and for confirmation of his possession in respect of the 'B' schedule land and for recovery of possession of the 'C' schedule land. The land described in schedule 'A' measures 54B -1K -14 Lechas comprising the land measuring 43B -4K -11 Lechas described in Schedule 'B' and 10 B. 2K. 19 Lechas described in schedule 'C' to the plaint.
(2.) THE plaintiff's case may be stated as follows: - Domram and Kaluram were two brothers being the son of one late Dhaniram. Kaluram died leaving two sons, Dukhuram and Laghanu Laghanu died leaving Baliram (defendant No. 5) and Dhariya Ram (defendant No. 6). Dukhuram died leaving his widow, Rangila only Rangila died in 1960. The plaintiff is the son of Domram. The plaintiff alleges that he entered into an agreement for the purchase of the 'A' schedule land from late Anandiram Das for a consideration of Rupees 1300/ -. The agreement was effected by a registered deed dated 23 -12 -1927. An earnest money of Rs. 200/ - was paid on the date of the agreement. The stipulation was that the balance of Rs. 1100/ - of the consideration money would be paid within a month when the sale deed would be executed. Accordingly the plaintiff paid the balance sum of Rs. 1100/ - on 3 -12 -1927 and purchased the land from Anandiram and took delivery of possession thereof. As the plaintiff was in Government service and as his two nephews, defendants Nos. 5 and 6, were jointly living with him he got the sale deed executed in the name of his cousin, Dukhuram, who was living separately from him. The plaintiff alleges that although the sale deed was executed in the name of Dukhuram the consideration money was paid by him; he himself took delivery of possession of the land and was in possession thereof; he paid the land revenue and exercised all his rights in respect of the land continuously since the date of purchase. After the death of Dukhuram there was some litigation in respect of the suit land, but it was he who was taking all steps in those litigations in the name of Rangila. He possessed the land through tenants and adhiars and realised rents in respect thereof, Dukhuram was keeping a shop at Shillong where he died about 30 years ago. After the death of Dukhuram he maintained Rangila at his house till about 5 years ago when she picked up a quarrel with his wife and left Shillong for her brother's home. Defendant No. 3, Chiroram Boj, was her brother. Defendant No. 2 is Chiroram's son. Defendant No. 1 is the son of Rangila's sister. After a few months of her stay with defendant No. 3, Rangila fell ill. Taking advantage of that position defendants Nos. 1 to 3 got a registered sale deed dated 1 -12 -1957 executed by Rangila in the name of defendant No. 4, Harmohan Bora, and got the money misappropriated. The plaintiff had no knowledge of the sale till April, 1961 when he learnt it from the tenants when he went to collect the rents. On 27 -5 -1960 Rangila executed a will in respect of the 'B' schedule land in favour of defendants Nos. 1 to 3. The plaintiff alleges that the will was collusive and involuntary. A few months after the execution of the will, namely, 15 -6 -1960, Rangila died. The plaintiff alleges that the purchase of the 'C' schedule land by the defendant No. 4 was collusive and the sale is void. It is also alleged that defendants Nos. 1 to 3 got Letters of Administration vide the decree of the Additional District Judge in T. Suit 10/60 in respect of the 'B' schedule land. The plaintiff further alleges that when the defendant No. 4 appeared and filed his written statement he came to know that defendant No. 4 had sold the 'C' schedule land in turn to the Gauhati Development Authority, which originally was not made a party to the suit but later on joined as defendant No. 4 (a). Defendants Nos. 1 to 3 have filed a joint written statement. They have inter alia pleaded that the suit was barred by limitation, it was bad for multifariousness; and that the suit was made quately valued and adequate Court -fee had not been paid. Their factual plea is that late Dukhuram was not in any way related to the plaintiff; Dukhuram, during his lifetime was keeping a shop at Shillong and was a man of substance. They allege that in 1927 Dukhuram purchased the land with his own money from ate Anandiram by the registered sale deed in question, got his name mutated and was in possession thereof. They deny that the plaintiff paid the consideration money. They admit that the plaintiff was known to Dukhuram, who requested the former to help him in the purchase of the land. Dukhuram paid the earnest money of Rs. 200/ - to the plaintiff to have the agreement for sale in the name of Dukhuram, but the plaintiff fraudulently got it executed in his own name, but later on when the fact was discovered the sale deed was executed in the name of Dukhuram. They claim that Dukhuram was the absolute owner of the suit land. They admit that Dukhuram died without any issue leaving his widow, Rangila as his sole heiress. After the death of her husband Rangila left Shillong and was living separately with her brother, defendant No. 3. It is also alleged by them that defendant No. 1, Abharsharam, was living with Dukhuram and Rangila at Shillong since his childhood and after the death of Dukhuram he left Shillong and he and Rangila used to stay at the residence of defendant No. 3. They deny that the plaintiff had to do anything with the suit land. They aver that during his lifetime Dukhuram managed the land and after his death it was managed by Rangila with the help of defendant No. 1. Rangila being in need of money sold the 'C' schedule land to defendant No. 4 by a registered deed dated 1 -12 -1959 for Rs. 6,500/ - and put defendant No. 4 in possession thereof. Defendant No. 4 in turn, sold it to defendant No. 4(a) who was put in possession thereof. They further aver that Rangila, out of natural love and affection and of her own free will executed the will bequeathing the 'B' schedule land to them. They, in due course, duly applied for Letters of Administration in respect of the will. The suit was contested by the plaintiff but the Additional District Judge granted the Letters of Administration vide T.S. No. 10/62 on contest. On the strength of the Letters of Administration they got their names mutated in place of Rangila in respect of the land. They further plead that Rangila instituted Title Suit No. 1160/34 in the Court of the Sadar Munsiff, Gauhati, in respect of 27 Bighas 17 Lechas which is half of the suit land against one Bimala Dasya and others and got a decree in her favour and got possession of the land. The plaintiff knew about the suit but he did not set up any claim to the suit land. Thereafter also the plaintiff and one Sukuram filed mutation case No. 227 of 1933 -34 claiming the suit land by right of inheritance from Dukhuram, but their case was rejected by the Assistant Settlement Officer by his order dated 2 -1 -1934 in which it was held that Rangila was the sole heir of Dukhuram and that she had been in possession of the land. The plaintiff did not prefer any appeal against that order, nor did he institute any civil suit.
(3.) DEFENDANT No. 4, Harmohan Bora, has filed a separate written statement. His material plea is that he was a bona fide purchaser of the 'C' schedule land for valuable consideration and was protected under Section 41 of the T.P. Act. He pleads that the land was in possession of some tenants who surrendered their possession by registered deed of relinquishment dated 1 -12 -1959 in his favour on payment of Rs. 1000/ -. He further pleads that the plaintiff consented to the mutation of his name in respect of the 'C' schedule land on 14 -6 -1962 before the Settlement Officer, Kamrup. He has also stated that by a registered sale deed dated 17 -1 -1962 he has sold the land to defendant No. 4(a).;

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