B.N.Maitra, J. - (1.)Title Suits Nos. 577 and 578 of 1976 and 258 of 1978 were heard together. The main dispute relates to the case set up by plaintiff in Title Suit No. 258 of 1978. He has alleged that the disputed property at premises No. 65, Mechuabazar Street, which was subsequently numbered as 155, Keshab Chandra Sen Street, belonged to one Sk. Munna as a tenant. He erected structures thereon. By a kobala dated 8-11-1917, he sold that property to Md. Hossain and All Hossain, who are sons of one Sk. Abdul. Sk. Amir was Abdul's elder brother and had no issue. He brought UD the plaintiff as his foster son. By a registered sale deed executed on the 26th July, 1924, Md. Hossain transferred his 8 annas share in the property to his brother, Ali Hossain. Then by a registered conveyance dated 25th Mar., 1926, Ali Hossain transferred that property to the plaintiff. The latter had great respect for Ali Hossain. That property was occupied by Sk. Amir, Sk. Abdul and the members of their family including the plaintiff. On his request, Ali Hossain used to look after that property. The rent receipts and documents in respect of their property remained in the name of Ali Hossain and the plaintiff kept his original title deed with him. He was engaged as a seaman on board a merchant ship and had to remain away from Calcutta for years together. So he forgot about his title deeds, documents and also with respect to his title to the property in question. The members of his family used to occupy one room in the structure standing on the disputed property. He was on board & ship up to 31-10-1976 and again from the 5th Feb., 1977, to 16th Dec., 1977. On the 22nd Dec., 1977, he returned to Calcutta and came to know that while he was on board a ship on the 25th July, 1977, Md. Yunus, defendant No. 1, (plaintiff of Title Suits Nos. 577 and 578 of 1976) forcibly took possession of that room, which had been in the occupation of the members of his family. He had consultation with his lawyers. He came to know that Md. Yunus claimed to have purchased the property in question described in the schedule 'A' to the plaint from defendants Nos. 3 to 5 by two different kobalas. But in fact no title accrued to Md. Yunus on the basis of those two documents. It further appeared that Md. Yunus instituted Title Suit No. 2323 of 1976 in the City Civil Court for recovery of khas possession of the premises described in Schedule 'B' to the plaint on the ground that the plaintiff was a licensee thereof, A fraudulent ex parte decree was obtained. Then Md. Yunus obtained khas possession of that room. Ali Hossain expired on the 30th Aug., 1970, leaving behind his widow (defendant No. 5) and son (defendant No. 2). The latter gifted his share in the property to his two sons, defendants Nos. 3 and 4. In fact, the plaintiff is the owner of that structure on the footing of the purchase by the aforesaid document dated 25th Mar., 1926, and Ali Hossain had no interest therein. His name is Md. Ali alias Sk. Jiaur Rasul. He is entitled to recover possession of that property. He has asked for a declaration that he is the owner of the structure of the disputed premises described in Schedule 'A' to the plaint, for a further declaration that the documents executed by defendants Nos. 3 to 5 in favour of Md. Yunus is not valid and not binding on him and also for a declaration that such ex parte decree is void and not binding on him. He has further asked for a permanent injunction to restrain Md. Yunus from disturbing his possession in the premises in question. He has prayed for recovery of khas possession with respect to the property described in the Sch. 'B' to the plaint and prayed for recovery of mesne profits.
(2.)Defendant No. 1, Md. Yunus, filed a written statement denying the plaintiff's allegations. His defence is that the suit is not maintainable; it is barred by estoppel and res judicata. Ali Hossain became the sole owner of the disputed property on the footing of the purchase made by him from his brother, Md. Hossain, by a kobala executed on the 26th July, 1924, Ali Hossain used to collect rent from the tenants of their property, had his name recorded in the landlord's office and in the Corporation of Calcutta as a thika tenant. In March, 1958, Md. AH filed Partition Suit No. 403 of 1958 in the original side of the Calcutta High Court against Ali Hossain and others praying for a declaration that he had fractional share in the disputed property, for partition and for taking accounts. The suit was contested by Ali Hossain and it was dismissed. An order was passed that the plaintiff would be given liberty to file a fresh suit within a fortnight on the same cause of action on payment of Rs. 100/- as costs. After AH Hossain's death, his only son, Zahirul Haque, gifted his share to his two sons, Serajul Haque and Manjural Haque (defendants Nos. 3 and 4). By a kobaia executed on the 7th July, 1975, defendants Nos. 3 and 4 sold their 14 annas share in the disputed property to Md. Yunus. Ali Hossain's widow, Shakuran Bibi, sold her remaining two annas share in that property to Md. Yunus by a kobaia executed on the 14th July, 1975. Thereby, he became the sole owner of that thika tenancy and of the property in question. His name was mutated in the landlord's office and also in the Corporation of Calcutta. He took possession of the property and collected rent from the tenants. Nabi Hossain (defendant in Title Suit No. 577 of 1976) and Aktar Hossain (defendant in Title Suit No. 577 of 1976) were licensees, who were in occupation of portions of the disputed property. Their licenses were duly revoked by him and thus, he instituted Title Suits Nos. 577 and 578 of 1976 against them, prayed for declaration of title, ejectment and injunction. The ex parte decree was rightly passed. Md. Ali had instituted Title Suit No. 130 of 1977 praying for a declaration that the disputed property was their joint property. He contested that suit. Then Md. Ali was permitted to withdraw that suit with liberty to sue afresh and costs were awarded.
(3.)Subsequently, Md. Yunus amended the plaint of Suits Nos. 577 and 578 of 1976.