- (1.) This appeal is directed against the judgment and the decree passed by Learned Additional District Judge, 2 nd Court, Asansol in Title Appeal No. 8 of 2004 by setting aside the judgment and the decree passed by 71 of 2003 learned Civil Judge (Junior Division), 2 nd Court, Asansol in Title Suit No.233 of 2000.
(2.) The respondents / plaintiffs filed said suit for declaration and mandatory injunction alleging that their father Debkumar Dasgupta purchased 'A' schedule property from Bengal Coal Company Ltd. on 8 th October, 1971 on payment of a valuable consideration (Rs.600/-) and came into possession of the same on the 22 nd of October, 1971. It is further case that the defendant No.1 company proposed to hand over the 'B' schedule property to their father in exchange of the 'A' schedule property in terms of a deed of exchange. Though the plaintiffs' father delivered possession of the 'A' schedule property and came into possession of the 'B' schedule property, but deed of exchange was not executed in spite of repeated requests. The plaintiffs' father died on 21.09.1979 and the plaintiffs as his heirs and legal representatives continued to possess 'B' schedule property as of right. Only when the plaintiffs tried to sell out the 'B' schedule property they came to learn about said non-execution of deed of exchange by the defendant No.1 Company. As in spite of repeated requests and sending of lawyer's notice dated 12 th of May, 2000 the defendant company did not execute the deed of exchange, the plaintiffs were compelled to file this suit for declaration and mandatory injunction.
(3.) The defendants filed a written statement denying material allegations of the plaint and contending inter alia that the suit was not maintainable as plaintiffs already filed another suit being Title Suit No.33 of 1999 against these defendants on similar and identical grounds. It is a specific case that the alleged sale by M/s. Bengal Coal Company Ltd. to the plaintiffs' father on 08.10.1971 was illegal, inoperative and collusive and that both 'A' schedule and 'B' schedule properties were properties of Bengal Coal Company Ltd. and that after nationalization of Coal Mines said lands vested to the defendant No.1 Company as per provisions of Coal Mines (Notification) Act, 1973 free from all encumbrances. It is further case that the suit lands were all along under the occupation of Bengal Coal Company Ltd. and thereafter under the defendant Company and the plaintiffs or their predecessor in interest were never in possession of the same and the suit was liable to be dismissed with cost.;