- (1.) This appeal is directed against the judgment and decree dated 30 th July, 2002, passed by learned Civil Judge, (Senior Division), Baruipur, South 24 Parganas in Title Appeal No.133 of 1997, reversing the judgment and decree dated 20 th September, 1997 passed by learned Civil Judge (Junior Division), 2 nd Court at Baruipur in Title Suit No.227 of 1982.
(2.) The plaintiffs filed a suit alleging that one Rajkumar Mondal and Nirab Mondal were in possession of the suit property, each, having eight anas share therein. It is further case that Nirab Mondal sold out his eight anas share in the suit property together with other properties to Debendra Nath Mondal under registered kobala dated 12 th May, 1952. Rajkumar Mondal's widow wife Kusum Kumari Dasi also sold away her share in the suit property together with some other lands to Nagendra Nath Mondal, Debendra Nath Mondal and Basanta Kumar Mondal under registered kobala dated 10 th July, 1939. On account of said purchase, Debendra Nath Mondal had 4/6 th share and Nagendra Nath Mondal and Basanta Kumar Mondal each had 1/6 th share in the suit land. Plaintiffs are heirs of Debendra Nath Mondal since deceased. Proforma defendants are heirs of Nagendra Nath Mondal and Basanta Kumar Mondal. In view of amicable partition of the properties between the cosharer, plaintiffs got 14 2/3 decimals of land in the western portion of the suit plot No.1503. plaintiffs were in possession of said earmarked portion of the suit plot No.1503 by constructing two rooms thereupon. On 27 th June, 1976, defendant No.1 Sunil Kumar Purkait started to construct illegally one room on a portion of suit plot No.1503, having no title thereupon. It is further case of the plaintiffs that one Bijoy Kumar Mondal being in need of money mortgaged some of his lands to Debendra Nath Mondal through an ostensible sale deed dated 12 th June, 1951. Debendra Nath Mondal also reconveyed said mortgage property to Bijoy Kumar Mondal through a sale deed dated 9 th December, 1960. It is further case that though Bijoy Kumar Mondal had no title in any portion of suit plot No.1503 but due to mistake 2 decimals of land of suit plot No.1503 was incorporated in his mortgage deed through an ostensible sale deed of 1951 and that said mistake crept in the reconveyance deed executed by Debendra Nath Mondal in favour of Bijoy Kumar Mondal. In terms of said Kobala of 1960, Bijoy Kumar Mondal did not get any title whatsoever relating to 2 decimals of land in suit plot No.1503. Accordingly, the plaintiffs have prayed for a declaration of their title in the suit property and a permanent injunction against the defendant No.1 as well as a mandatory injunction against the defendant No.1 by way of removing of his construction standing on 2 decimals of land in suit plot No.1503.
(3.) The Defendant No.1 contested the said suit by filing a written statement denying material allegations of the plaint and contending, inter alia, that his vendor Bijoy Kumar Mondal purchased 2 decimals of land in plot No.1503 and started to use the same by constructing a house thereupon. It is further case that on 20 th August, 1974, Bijoy Kumar Mondal sold said 2 decimals of land together with structure thereupon to one Jiban Kriishna Chakraborty under an agreement of reconveyance and later on Jiban Krishna Chakraborty reconveyed said property to Bijoy Kumar Mondal through a kobala dated 23 rd September, 1975. While Bijoy Kumar Mondal was in possession of said property, he sold away the same to the defendant No.1 through a kobala dated 26 th May, 1976 and that since said purchased the defendant was residing therein and that he did not make any new construction thereupon. Accordingly, he has prayed for dismissal of plaintiffs' suit so far as it related to his purchased property namely 2 decimals of land in suit plot No.1503.;