Decided on November 11,1976



- (1.)THIS appeal is by the plaintiff and it arises out of a suit for declaration of title to and for recovery of possession of certain land. The plaintiff's case is as follows:-The disputed land forms part of two plots, namely, plot No. 104 and 115 appertaining to Khatian Nos. 450 and 452 01 Mouza Nijasinthi. These two plots of lands formerly belonged to one Rai Bahadur Ajit Nath Das under whom one Krishna Behari Mondal was an occupancy raiyat. The plaintiff alleges that Krishna Behari abandoned the holding whereupon Roy Bahadur Ajit Nath possessed the lands for two years. It was further alleged that on October 16, 1939, he gifted the said lands to one of his sons, Kunja Kishore Das, Kunja Kishore mortgaged the said lands to Jnanendra Chandra Mondal on 15th March, 1940 and thereafter again on 1st August, 1940. Jnanendra Chandra instituted a mortgage suit namely, Mortgage Suit No. 88 of 1947 in the 5th court of the Sub-Judge and in execution of decree obtained therein in Title Execution No. 2 of 1955 the property was put up to sale. Jnanendra having died in the meantime his wife Sashimukhi was brought on record, The plaintiff auction purchased the said land on 10th August, 1956, and thereafter obtained symbolical possession on 30th September, 1956. The plaintiff alleged that the defendant trespassed into the land and tried to raise structures thereon and therefore he instituted the present suit.
(2.)THE defence admitted the tenancy of Krishna Behari but alleged that he did not abandon the holding but there was a surrender by him in favour of the landlord. The defence case is that after the surrender Roy Bahadur Ajit Nath Das granted settlement by two registered pates one on the 29th March, 1942 in respect of plot No. 104 as well as other lands in favour of Birendra Nath Gupta and the other on 13th March in respect of plot No. 115 as well as other lands in favour of Nripendra Nath Gupta. The lessees possessed the disputed land along with other lands for some time and thereafter on 1st May, 1946 they sold the disputed lands to the Suburban Bank Ltd. Suburban Bank Ltd. thereafter sold the disputed lands on 6th May, 1947 to Makhanlal Das, Makhanlal in his turn sold the same to Gostha Behari Ghose on 24th November, 1948. The present defendants are the purchaser from Gostha Behari Ghose by different sale deeds dated 5th May, 1954. The defendants contested the suit on the ground that the Deed of Gift executed by Roy Bahadur Ajit Nath in favour of Kunja Kishore was never acted upon and that Kunja Kishore had no title to or possession in the disputed lands. Alternatively, the defendants pleaded that the plaintiff's title, if any, was extinguished by adverse possession.
(3.)THE trial court found that the Deed of Gift in favour of Kunja Kishore was not acted upon and Kunja Kishore had no title to or possession in the suit land. The trial court further found that the defendants had acquired good title by adverse possession and accordingly it dismissed the suit. Against the said decision the plaintiff filed an appeal before the lower appellate court but the appeal was also dismissed upon the finding that the Deed of Gift was invalid and inoperative as it was hit by section 122 and section 126 of Transfer of Property Act. The appellate court found that Kunja Kishore did not acquire any interest in the property. The lower appellate court further found that Kunja Kishore was not in possession of the disputed land at any time. It was further found by the lower appellate court that Birendra nath and Nripendra Nath, the lessees under Roy Bahadur Ajit Nath Das, had. been in possession since the date of their respective settlement, and thereafter possession had all along been with the predecessor in title of the defendants. On these findings the appeal was dismissed by the lower appellate court.

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