Tarun Kumar Gupta, J. - (1.) THIS appeal is directed against judgment and decree dated 28th November, 1995 passed by learned Additional District Judge, 4th Court at Krishnanagar, District Nadia in Title Appeal No.140 of 1993 affirming the judgment and decree dated 18th March, 1993 passed by learned Munsif, 2nd Court at Krishnanagar District Nadia in Title Suit No.61 of 1990.
(2.) THE respondents filed said suit being Title Suit No.61 of 1990 alleging that their predecessor-in-interest namely Nitendra Kumar Bhattacharjee was resident of Shukhari village under Maiman Singha District, East Pakistan and came to India in 1947 after partition and purchased the suit property in C. S. Khatian No.40, Plot No.500 measuring 1.05 decimals and other non-suit property from Panchanan Singha Roy being guardian of owner minors Apurba Kumar Singha Roy and Amar Nath Singha Roy by a registered Kobala dated 16th December, 1947. Nitendra Kumar Bhattarcharjee took loan from Government of West Bengal under a scheme of giving loan to the refugees by mortgaging the suit property and other properties. As Nitendra was a railway employee, he entrusted his cousin brother-in-law Sunil Kumar Bhattacharjee to record the name of Nitendra in R. S. record of right. Nitendra died on 18th of May, 1985. THEreafter, Sunil Bhattacharjee prevented plaintiffs to possess the suit property and tried to record name of one Hare Krishna Dey as a Bargadar. A case was filed in the High Court on that score. Plaintiffs all along possessed the suit property by cultivation through hired labourers. On the strength of erroneous and baseless record of rights, the defendants tried to dispossess the plaintiff from the suit property. Hence was the suit. Defendant Nos. 1 and 2 namely Amarendra Kumar Bhattacharjee and Ramarendra Kumar Bhattacharjee contested the suit by filing a joint written statement. They alleged inter alia that before partition Aswini Kumar Bhattacharjee, father of Nitendra and present defendant, Sudhansu Bhattacharjee, sisters husband of Nitendra, Jatindra Nath Bhattacharjee, brother of Nitendras father-in-law used to live in Maiman Singha. Nitendras father-in-law Purna Chandra Bhattacharjee as well as Nitendra were residing in Calcutta. The defendants, brothers of Nitendra, were minor at that time. Nitendra was entrusted by his father Aswini, sisters husband Sudhansu, father-in-law Purna and father-in-laws brother Jatindra for purchase of landed properties in West Bengal. Nitendra purchased 2.47 acres of land in plot No.500 of Mouza Bethoduari from their money but in his name as there were legal problems in purchasing landed properties in India in the name of persons residing in the then East Pakistan. After partition those persons came to India and got their respective shares of the property so purchased by Nitendra with their money. The 1.05 acres of land in plot No.500 was allotted in favour of Aswini, the father of Nitendra and defendants. During R. S. operation at the instance of Nitendra the respective shares of said property was recorded in the names of their owners namely Aswini, Sudhansu, Purna and Jatindra. Aswini died in 1960 and on his death the said recorded property devolved upon his four sons namely Nitendra and the three defendants in equal shares each having four anas share therein. R. S. record was finally published recording the suit property measuring 1.05 acres in the name of Nitendra and his three brothers. .60 acres in the name of Sudhansu, .59 acres in the name of Purna and .23 acres in the name of Jatindra. Harekrishna Dey was cultivating the suit property along with other properties as Bargadar under Nitendra and his brothers. The suit was liable to be dismissed. Learned Trial Court framed as many as eight issues on the basis of the pleadings of the parties. On the basis of evidence on record, both oral and documentary, learned Trial Court came to the findings that defendants failed to establish that Nitendra was a mere trustee and not the real owner in respect of the suit plot. Learned Trial Court accordingly passed a decree in favour of the plaintiffs. The defendants preferred an appeal being Title Appeal No.140 of 1993 but lost in said legal battle. Learned Judge of the Lower Appellate Court confirmed the findings of learned Trial Court. The defendant/appellants has preferred this Second Appeal alleging inter alia that learned Courts below failed to consider the effect of vesting under West Bengal Estate Acquisition Act, 1956 and that the impugned judgments are liable to be set aside.
(3.) THE substantial question of law involving in this case is as to whether learned Lower Courts substantially erred in law by overlooking the overall impact of the records of rights prepared under West Bengal Estate Acquisition Act and thereafter under West Bengal Land Reforms Act vis--vis various transactions made by legal heirs of Purna Chandra, Jatindra and even the respondent/plaintiffs relating to bata plots of original C.S. plot No.500. Sri Bhaskar Ghosh, learned advocate for the appellant, has submitted that learned Courts below disbelieved the defence version of purchasing 2.47 acres of land in plot No.500 of Mouza Bethuadahari by Nitendra in his name as being entrusted by his father Ashwini, father-in-law Purnachandra, sisters husband Sudhangshu and father-in-laws brother Jatindra who at the relevant time i.e., in 1947 were residing in erstwhile East Pakistan while Nityendra was staying in India being a railway employee. According to Mr. Ghosh, learned Trial Court disbelieved said defence version for want of direct evidence on that score. According to him, as all those persons namely Ashwini, Purnachandra, Sudhangshu, Jatindra and even Nitendra have since died, there was hardly any scope for giving direct evidence of entrustment made in 1947 at the time of recording evidence in 1991-1992. Mr. Ghosh has further submitted that in 1959 R. S. records were finally published recording 1.05 acres in the name of Nitendra, Ramendra, Amarendra and Manabendra being four sons of Ashwini ; .60 acres in the name of Sudhangshu (sisters husband of Nitendra); .59 acres in the name of Purnachandra being father-inlaw of Nitendra and .23 acres in the name of Jatindra being brother of Purnachandra.;