- (1.) These two appeals were heard together as those are directed against a common judgment dated 28th November, 2000 passed by the learned Civil Judge, Senior Division, 7th Court, Alipore, thereby disposing of two suits, one for eviction of a licensee and the other, for partition by dismissing the suit for eviction and passing a preliminary decree in the suit for partition. Being dissatisfied, the plaintiffs of the eviction suit, who are the defendants of the partition suit, have preferred these two appeals. The facts, giving rise to filing of the aforesaid two suits out of which these two appeals arise, may be summed up thus: One Jamini Mondal had two sons, viz. Niranjan and Pulin. The suit for eviction has been filed by the heirs Niranjan by treating Pulin as licensee under them whereas Pulin has subsequently filed the suit for partition claiming half share in the property by virtue of a registered deed of sale executed by Jamini in favour of both Niranjan and Pulin.
(2.) According to the heirs of Niranjan, their predecessor was the original owner of the suit land, which he purchased with his own money. Subsequently, at the time of making construction over the land in question, Niranjan took loan of Rs.3,000/- from Jamini, his father, and executed an apparent deed of sale in favour of his father with oral agreement for reconveyance on the stipulation that after the repayment of the said loan, Jamini would reconvey the property in favour of Niranjan. Such sale-deed was executed by Niranjan in the year 1964. ACCORDING to the plaintiffs, in fact, pursuant to such understanding, Jamini executed a deed of reconveyance in favour of Niranjan, where the stamp paper was purchased by Niranjan, but it was subsequently detected that in the saledeed, Pulin was shown to be joint purchasers along with Niranjan. ACCORDING to the heirs of Niranjan, Pulin was looking after execution of the deed, and by practising fraud in collusion with the lawyer who drafted the deed, he incorporated his name as one of the joint purchasers though Niranjan alone paid back the full consideration money as per agreement. ACCORDING to the heirs of Niranjan, such fraud was detected subsequently by Niranjan during his lifetime when Pulin pleaded for mercy and even had given a declaration in writing that Niranjan was the absolute owner of the property. After the death of Niranjan, Pulin became the guardian of the heirs of Niranjan and on the plea of mutating their names in the municipality, he took back of all papers including the written declaration given by him, which was subsequently not returned, and it transpired that Pulin mutated his name along with heirs of Niranjan in the Municipal records. Hence, the suit was filed for eviction by treating Pulin as a licensee. After the filing of the suit for eviction, Pulin filed a suit for partition claiming 8 annas share in the property on the allegation that Jamini, the father of the parties, was the real owner of the property who also purchased the property in the name of Niranjan and subsequently, such position was clarified by a formal execution of the sale-deed in favour of Jamini. Jamini, thereafter took loan from the Government of Rs.10,000/- and constructed building thereon with that money and, thereafter, executed a deed of sale in favour of both Niranjan and Pulin by accepting Rs.1,500/- each from his two sons. Thus, by virtue of such purchase, Pulin became joint owners of the property along with his brother Niranjan. It is further alleged that there was no question of inducting Pulin in the property as licensee. The heirs of Niranjan contested the said suit by reiterating their plaint case of the eviction case as the defence in the suit for partition. At the time of hearing of the suit, one of the sons of Niranjan and another person gave evidence in support of the suit for eviction and the defence in the suit for partition while the widow of Pulin, who died during the pendency of the suit, alone deposed in opposing the suit for eviction and in support of suit for partition.
(3.) The learned Trial Judge on consideration of materials on record came to the conclusion that the plea of the heirs of Niranjan that fraud was practised upon Jamini by Pulin had not been established and as such, in view of the saledeed executed in the year 1970 by Jamini in favour of his both the sons, Pulin and Niranjan acquired 8 annas share each in the property. It was pointed out that although Niranjan was alive even after detection of fraud till the year 1977, he, during his lifetime, never initiated any proceeding for annulling the deed executed by his father as a void document. 5. THE learned Trial Judge further found in such circumstances the heirs of Niranjan were not entitled to get decree for eviction whereas the other suit filed by Pulin should be decreed in preliminary form by declaring 8 annas share in the property of both Pulin and Niranjan. THE learned Trial Judge thus decreed the suit for partition and dismissed the suit for eviction. As indicated above, these two appeals have been filed by the heirs of Niranjan. Mr. Roy Chowdhury, the learned senior advocate appearing on behalf of the appellants, strenuously contended before us that the learned Trial Judge totally overlooked the fact that the defence taken by Pulin that Niranjan was the benamder of Jamini was not pressed and as such, it was established that Niranjan was the real owner of the property. According to Mr. Roy Chowdhury, once it is established that Niranjan was the real owner of the property, the case made out by his clients that the sale-deed in favour of father was really a loan transaction should have been accepted. Mr. Roy Chowdhury contends that there was no justification of execution of a sale-deed by the father on the same consideration of Rs.3,000/-after lapse of 6 years unless Niranjan was the real owner of the property. Mr. Roy Chowdhury further contends that in such circumstances the learned Trial Judge should have decreed the suit for eviction as the heirs of Pulin failed to establish their defence of benami. Mr. Roy Chowdhury further contends that the widow of Pulin could not say anything about the earlier transactions and thus, the learned Trial Judge erred in law in accepting the defence version of Pulin which is not supported by any cogent evidence.;