Decided on August 06,1976



- (1.)THIS second appeal is by the principal defendants against the judgment and the decree passed by an Additional District Judge, 24-Parganas in an appeal reversing those of the Munsif of the trial court. The trial court dismissed the suit brought by the plaintiff. But, in the first appeal the plaintiff was successful.
(2.)ACCORDING to the plaint allegation, the suit land originally belonged to one Bashi Bibi. She had 12 annas share in the jama. After the vesting of the estate of the intermediary in the state according to the provisions of the west Bengal Estates Acquisition Act, bashi Bibi became a tenant under the state Government in respect of 12 annas share. Remaining 4 annas share belonged to Kadvanu Bibi. When they were in possession of the suit land previous to the introduction of the west Bengal Estates Acquisition Act, a Rent Suit was filed by the landlord for arrears of rent. In execution of the decree obtained in that suit, the execution Cast No. 1160 of 1953 was started and there the suit land was sold in auction. Subsequently, however, bashi Bibi filed a petition under section 174 (3) of the Bengal Tenancy Act for setting aside that sale and a Miscellaneous case was started being Case no. 133 of 1954. In the said Miscellaneous case the auction sale was set aside by the court in terms of the petition of compromise filed by the auction purchaser and the petitioner, Bashi Bibi, thus continued in possession of the suit land and on January 3, 1963 she sold her interest in the suit jama to the plaintiff Kunja Behari Achari by a registered kobala. After the purchase when Kunja Behari went to take possession of the land, he was resisted by the defendants Mahananda and others. Plaintiff came to know on enquiry that the relevant khatian was recorded in the name of the principal defendants. According to the plaintiff, the settlement record was collusive and baseless. He started the suit for declaration of his title and recovery of possession of the suit land by evicting the defendants who were trespassers.
(3.)THE principal defendants contested the suit. Their case is that the suit jama which originally belonged to bashi Bibi and others was sold in auction in the Rent Execution Case as mentioned by the plaintiff and the same was purchased by one Sunil Biswas on march 13, 1954. Thereafter, on august 16, 1954 Haripada Dey, Upendra nath Dey, Sudhir Kumar Dey and Ajit kumar Dey purchased the suit land by a registered kobala and on that very day the principal defendants Mahananda Mazumdar, Rasharaj Mazumder harendra Nath Mazumdar and Sashi bhusan alias Shambu Nath Mazumdar purchased the same by another registered kobala from Haripada Dey and three others and since then they have been possessing the same lawfully and with proper title without knowing that the auction sale was set aside as alleged by the plaintiff. It has been alleged by the defendants that their title would not be affected as the order setting aside the sale was made by the court without notice to them and as they were not parties to that proceeding.

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