S.N. Bhattacharjee, J. - (1.) This Appeal has been directed against the judgment and decree dated 12.1.70 passed by Additional Subordinate Judge, Balurghat in Title Appeal No. 7/69 whereby the judgment and decree dated 30.11.68 passed by Munsif of Raigang in Title No. 14 of 1964 was affirmed.
(2.) The facts of this case have been stated in detail in the appellate Court's judgment. So the facts of this case are being stated in a nutshell to avoid prolixity. The suit properties described in the schedule of the plaint originally belonged to Kalicharan and his brother Lalit Mohan who in satisfaction of a loan incurred from one Sarat Chandra Saha, Kalicharan's father-in-law, transferred the suit property by a registered kobala in favour of Sri Prasad and Uddhab, two sons of Sarat Chandra Saha in the year 1315 B.S. The land under the Kobala was described by boundaries. The original respondents 1, 2, 3 (since deceased) who claimed to have got the suit properties by will and inheritance from their predecessors filed title suit No. 14/64 for declaration the recovery of khas possession alleging that the defendants who are successors of Kalicharan (appellants herein) dispossessed them from the suit property since Poush 1358 B.S. without having any right, title, or interest in the suit property, they were only allowed to look after the cultivation of the property through Adhihars.
(3.) According to the Appellants, Kalicharan and Lalit Mohan took loan of Rs. 400/- from carat Chandra Saba and as they had many creditors the kobala of 1315 B.S. in favour of two sons of Sarat Chandra was executed on the understanding that Sri Prasad and Uddhab were merely name lenders and the transaction was a benami. No consideration was passed and the document was in the custody of the Kalicharan. Their further case is that, subsequently, the deed was destroyed by fire but the appellants continued to be in possession through bargadars who executed kobulyats in their favour and that the appellants have perfected their title by adverse possession. The learned trial Court answered the issues in the following manner : (i) The disputed kobala of 3rd Bhadra 1315 B.S. does not represent a benami transaction ; (ii) The suit for possession of immovable property being based on title, the period of limitation for the institution of the suit is, therefore, 12 years from the date when the possession of the defendants became adverse. (iii) There is no scrap of paper showing defendants' possession in the suit land on any date prior to 24th Ashar 1358 B.S. corresponding to 9.7.51, that defendants' possession in the suit lands was not adequate in continuity, in publicity, exclusiveness and extent so as to be adverse to the interest of the plaintiffs nor effective to extinguish their title to the suit lands. On the basis of such findings the suit was decreed. The 1st Appellate Court affirmed the said decision on a similar finding. In this appeal the judgment of the appellate Court has been impugned.;