B.Panigrahi, J. - (1.) The unsuccessful defendant Indian Iron & Steel Company Limited is the appellant. The plaintiff/respondent has filed the suit for partition and declaration of 2/3rd share in the suit properties. The suit plots 2938 and 4121 in Khatian No. 215 and 3100 respectively of Mouza Hirapur originally belonged to one Makhan Mondal. After his demise his son Bholanath Mondal inherited the suit properties. Bholanath Mondal died childless leaving behind his widow who also subsequently died. Bital Mondal, the surviving brother of Makhan Mondal inherited the suit land. Makhan Mondal's other two brothers Charan and Bipin predeceased him. Bhim Mondal was the son of Charan and Arjun Mondal was the son of Bipin. Arjun and Bhim could not inherit anything as Makhan Mondal was survived by his full brother Bital Mondal. Bital Mondal, however, by way of family arrangement divided the suit properties into three parts and allotted 1/3rd share to himself and also to the sons of his brothers, viz. Bhim and Arjun. In this way Bital got 1/3rd share. Bhim Mondal and Arjun Mondal each got 1/3rd interest in the suit property by way of family arrangement. Thereafter Bital died leaving behind his minor sons Banshi, Dukharan and his widow Ramani Dasi. While in possession of the suit property the mother of Banshi and Dukharan sold out 1/3rd interest of Bital to Arjun Mondal by virtue of a registered Kobala dated 2.7.38 for legal necessity of the minors. Arjun thus acquired 2/3rd interest in the suit property and Bhim continued 1/3rd interest. Arjun died leaving behind his widow Dulali Dasi and minor daughter of Dulali Dasi, who inherited the interest of Arjun and began to possess the same. While in possession they sold their 2/3rd interest in favour of original plaintiff Karali Dasi (since deceased and substituted by the present plaintiffs) under the strength of a registered Kobala dated 17.3.47. The plaintiff's predecessor-in-interest was in peaceful possession of his interest in the suit properties. It is alleged by the plaintiff/respondent that the appellant obtained a fraudulent sale deed from the defendant No.2 Dukharan and Banshiharan, who are the sons of Bital knowing fully well that they have no right, title and interest over the suit properties. The plaintiff's share was recorded in R. S. Khatian in respect of Plot 2938 but the name of plaintiff's predecessor has not been recorded in respect of plot No.4128 that is described in the Schedule 'Kha' of the plaint. Thus the plaintiffs have claimed 2/3rd share in the suit properties as described in Schedule 'Kha' of the plaint and sought for partition over the suit properties.
(2.) In respect of plot No.2938 the defendants had allegedly got the award from the Land Acquisition Collector on the acquisition of the said plot and the original plaintiff claimed 2/3rd share in the Award in reference case before the Additional District Judge, Asansol and in that reference Case No.123 of 1962 the plaintiff's 1/3rd interest in the suit property had been declared on the finding that by virtue of family arrangement with Bital, Arjun did not get anything but Arjun had acquired 1/3rd interest by virtue of purchase from the widow of Bital as the guardian of the minors and that the plaintiffs having purchased that interest from Arjun had acquired 1/3rd interest in plot No. 2938 and accordingly the plaintiff got the Award. Therefore, the plot No.2938 having been acquired by the LA.Collector was not included in the present suit. Thus the plaintiff's had claimed partition only in respect of plot No.4121 of Hirapur Mouza described in Schedule 'Kha' of the plaint which he purchased from Arjun long before the purchase by the defendant. It is alleged by the plaintiff that the R.S. record of right being clearly erroneous and fraudulent, the defendant cannot claim independent right by virtue of such wrong entry.
(3.) The appellant filed its written statement, inter alias, denying the right, title and interest of the plaintiff over the suit properties. The defendant denies that there was any family arrangement between Bital Mondal and his nephews. The defendant had, however, admitted that the appellant who is the defendant No.1 in the trial court had, however, admitted that out of two plots, plot No.2938 had been acquired by the L.A. Collector and the plaintiff's 1/3rd share by virtue of purchase from Arjun was declared by the Additional District Judge in reference case as alleged in the name of the plaintiff. But it was contended that the plot No.4128 was not the subject matter of the decision and there was no finding in favour of the plaintiff for the aforementioned plot. The defendant also denied about the right of the mother of Dukharan and Banshi for selling any portion of the suit land in favour of Arjun and that if my sale deed was executed, that was never acted upon. The specific case, of the defendant is that Bital Mondal was the full owner of the suit properties and he died leaving behind two sons, i.e. Dukharan and Banshi and their mother. Dukharan and Banshi were the owners of the plot No. 4121. On 21st January, 1955 they entered into a valuable agreement with the defendant No.2 for the sale of the suit land and as part performance of the contract, delivered possession of the suit land to these defendants.;