RITENDRA MOHAN DUTTA Vs. MIRA ROY

JUDGEMENT

(1.) This Second Appeal has been filed by the defendants. The trial Court decreed the suit. There was an appeal and the appeal was dismissed. Hence, this Second Appeal.

(2.) The case of the plaintiff is that the defendant No.2 is the elder brother of the defendant No. 1 the present appellant. 18.8 Is. of land at Ward No. 1 of Dhubri Town covered by periodic patta No. 624, Dag No. 1176 stood in the names of the two defendants alongwith their four brothers. All being sons of late Lalit Mohan Dutta. "B" Schedule land is a part of the ancestral land used as a part of common path. After participation of the joint property amongst the brothers "A" schedule land was separated from the original patta No. 624 and was recorded in New Patta No. 723 with Patta Dag No. 1815 having an area of one katha in the name of defendant No.2 a co-sharer. The defendant No.2 by registered Sale deed No. 2858 dated 19.3.80 sold the "A" & "B" schedule lands and has claimed over "B" schedule to the plaintiff at a price of Rs. 15,000/- and thus the plaintiff stepped into the shoes of the defendant No.2 as one of the co-sharers. The "A" and "B" schedule lands were in the custody of defendant No. 1 who used to look after the entire property for all the brothers including defendant No. 2 as defendant No.2 used to live outside. After execution of the Sale deed, the defendant No.2 took the plaintiff to the defendant No. 1 and asked him to hand over possession of the land to the plaintiff and to do the needful. Defendant No.1 gave assurance to defendant No.2 to leave everything to nun. Defendant No. 1 as assured did not deliver the possession of the land to the plaintiff and when the plaintiff filed an application for mutation of the land he objected to the mutation. Thereafter, the plaintiff filed the present suit praying the following reliefs:

(3.) A written statement was filed by the defendant No. 1 and his main plea was that the suit land alongwith the other land is the ancestral land with residential house thereon and is still in possession of all the co-sharers being looked after and managed by him. That there was no partition and he was not aware of the Deed of sale executed by the defendant No.2. He also took the plea that the Deed of sale was procured by the plaintiff by taking advantage of the addiction of the defendant No.2 to liquor and he offered purchase to the property for the same price when he came to know of the sale. But the plaintiff instead of selling the land to him has filed the suit. That he is ready and willing to pay the purchase money. The defendant No.2 though he did not file the written statement he admitted the claim of the plaintiff. He also admitted that he sold the land to the plaintiff and he: wanted that all the reliefs claimed by the plaintiff should be given to him. As many as 5 issues were framed in the suit. The issues are as follows: