- (1.) THIS appeal is at the instance of the defendant nos. 1 and 2 in a suit for declaration of title and recovery of possession and is directed against the judgment and decree dated 31st January, 1986 passed by the Assistant District Judge, Purulia, in Title Suit No. 106 of 1971, thereby declaring that the plaintiff had title in the suit property to the extent of eight annas and that the defendant No. 1 had the remaining eight annas. The Court further granted a decree of joint possession of the parties after rejecting the prayers of the plaintiff for declaration of title to the extent of sixteen annas and recovery of possession.
(2.) BEING dissatisfied, the defendant Nos. 1 and 2 have come up with the present first appeal while the plaintiff has filed a cross-objection claiming that the learned Trial Judge ought to have decreed the suit in full as prayed for in the plaint instead of declaring only half-share and the decree for joint possession in the modified form.
(3.) THE case made out by the plaintiff-respondent in the aforesaid suit out of which the present appeal arises may be summed up thus : (a) The suit premises belonged to one Jagannath Joshi. He was a marwari Brahmin. The property was originally acquired by one mangturam Marwari through a sale-deed dated 15th July, 1940. Jagannath Joshi acquired the property from Mangturam Marwari but instead of execution of a sale-deed, a registered-deed of nadabi dated 19th July, 1940 was taken from Mangturam marwari in the benam of his wife, viz. Moni Devi in order to avoid unnecessary expenses of payment of stamp duty. Jagannath joshi had other brothers and so, in order to avoid any possible claim by the other brothers in future, he acquired the property in the name of Moni Debi, his wife. The wife of Jagannath Joshi had no source of income nor had she any separate fund of her own. Jagannath Joshi was a man of means and had sufficient income and he paid the consideration amount. of Rs. 2,900/- and thus, acquired valid title to the property and remained in possession till his death in the month of October, 1953. (b) The property was entered in the Municipal Register in the name of Moni Devi as per deed in order to maintain the benami character of the transaction. In fact, Jagannath Joshi all along paid the municipal taxes. The name of Moni Devi was also entered in the Land Registration Department on the selfsame ground and the charges were paid by Jagannath Joshi. The property described in Schedule 1 of the plaint is a one-storied building consisting of 10 rooms besides one room above the stairs and was the northern half of one holding at the time of purchase. The southern half was purchased by one Mahadeb marwari of Purulia. (c) After the purchase, Jagannath Joshi let out the portion of the holding described in Schedule 1 and used to realise rent from the tenants and possessed the other portion of the holding in khas. A portion of the holding described in Schedule 2 was let out to Ramniwas Bharech as a monthly tenant who paid Rs. 20/-for the portion used for residence and Rs. 18/- for the portion used for the business purpose and, thus, the total rent was rs. 38/- payable according to Hindi calendar month which was subsequently enhanced to Rs. 55/ -. After the death of Ramniwas bharech, his sons and widow were in occupation of the Schedule 2 property and the defendant No. 3 Ram Bhagat Bharech was the Karta of the joint family consisting of himself, his brother and mother. (d) A portion of Schedule 1 property was in occupation of the defendant No. 2 as a monthly tenant on payment of Rs. 15/-according to Hindi calendar month which is described in Schedule 3. The remaining portion of the holding was in khas possession of the plaintiff and the daughter of Jagannath Joshi which is described in Schedule 4 of the plaint. (e) Jagannath Joshi had only one daughter named Gomoti Debi. Jagannath Joshi adopted his brother's son, viz. Sitaram Joshi in Rajasthan in the year 1942. Sitaram Joshi was the natural son of Sanwalram Joshi and he was given in adoption by his natural mother, the widow of late Sanwalram when he was a boy of 14 years. (f) Thereafter, Jagannath Joshi brought Sitaram Joshi to Purulia and the said Sitaram began to live with his adoptive parents at purulia. He got his education at Purulia for sometime and subsequently, Jagannath placed him employed in the firm of bishandayal Ramjiban of Purulia where he served for sometime. The plaintiff was married to Sitaram Joshi in the month of May, 1945 but unfortunately, the plaintiffs husband died in the month of August following the said year. Thereafter, the plaintiff used to reside with her parents-in-law at Purulia and sometimes, lived at her father's place at Motihari. Jagannath Joshi's daughter, viz. Gomoti Debi, was married to Brijlal Shewda, the brother of the defendant No. 2, viz. Debi Prasad Shewda, but he became insane before the plaintiffs marriage and he was in the lunatic asylum at Ranchi until his death. Therefore, Gomoti Debi all along stayed with her parents. Brijlal Shewda died in the month of may, 1965 and Gomoti Debi used to reside with her mother as above. (g) On the death of Jagannath Joshi, the property described in schedule 1 devolved upon his widow Moni Devi and the plaintiff as his predeceased adopted son's widow in equal shares. Moni devi being the mother-in-law of the plaintiff used to realise rent from tenants on behalf of herself as also on behalf of the plaintiff and pay the municipal taxes and other charges for the property described in the Schedule 1 on behalf of both the co-sharers. The electric installation in the holding was applied by Jagannath joshi but the connection was given by the Electric Company after his death. (h) The plaintiff, after the death of Moni Devi, came to learn that Moni devi executed a Will regarding the property described in schedule 1 and gave a life-estate of the same to Gomoti Debi without any power of alienation. Gomoti Debi also applied for the Letters of Administration of the Will in the Court of the District judge, Purulia, which was registered as Letters of Administration case No. 4 of 1966. The said case was subsequently dismissed on the death of Gomoti Debi. (i) After the death of Moni Devi, which took place in the month of august 1963, her half share in the property devolved upon her daughter Gomoti Debi and on her death, the same devolved upon the plaintiff as the heir of Jagannath Joshi. Thus, the plaintiff became the full owner of the entire property on the death of gomoti Debi. After the death of Moni Devi, Gomoti Debi used to realise rent from tenants on behalf of herself as also on behalf of the plaintiff as she was much older than the plaintiff and the plaintiff used to live sometimes at Purulia and sometimes at motohari. The plaintiff, at times, also realised rent. Gomoti Debi paid municipal taxes of the property on behalf of herself as also on behalf of the plaintiff. Gomoti Debi suffered from cancer for about a year and died on 24th January, 1967. (j) The defendant No. 2 was inducted as a monthly tenant in respect of portion of the premises, which is described in Schedule 3, and he had been residing with his family since July, 1966. The defendant No. 1 is the son of the defendant No. 2. The plaintiff went to Motihari sometime in the month of December, 1966 and subsequently came back to Purulia on 24th January, 1967 and found that Gomoti Debi died a few hours before her arrival. (k) Thereafter, the defendant No. 1 wanted to create trouble and set up a claim over the Schedule 1 property on the ground that the property belonged to Gomoti Debi and the defendant No. 1 had got the property as he was the adopted son of Gomoti Debi. Although, all such allegations are false and unfounded, the marwari Brahmin Samaj of Purulia intervened and locked two rooms, which were in khas possession of the plaintiff and Gomoti debi, and the said rooms were still under the lock and key in charge of proforma defendant No. 4. Those two rooms are described in Schedule 5 of the plaint. (l) Dispute regarding title to the property of Schedule 1 of the plaint was referred to arbitration. Two arbitrators were selected by the plaintiff and the other two, by the defendant Nos. 1 and 2 and the arbitrators selected defendant No. 4 as umpire. Ultimately, the decision was in favour of the plaintiff but in the meantime, after reference to arbitration, the defendant No. 1 retracted from the reference on untrue allegations. (m) Gomoti Debi was not the full owner of the Schedule 1 property and she had only half share, which devolved upon the plaintiff on her death. The plaintiff had previously half share, which she inherited from her father-in-law. Therefore, the plaintiff was the full owner of the entire building after the death of Gomoti Debi. (n) Gomoti Debi never adopted the defendant No. 1 as a son and there was never any actual ceremony of giving and taking of the defendant No. 1 by way of adoption. Moreover, the defendant no. 1 was not fit to be adopted as he was more than 15 years old at the time the alleged adoption was taken. The alleged deed of adoption dated 31st May, 1966 was set up by the defendant nos. 1 and 2 and was fraudulent, illegal, collusive and inoperative. It came into existence without the knowledge and consent of Gomoti Debi. Moreover, the plaintiff came to learn that the defendant Nos. 1 and 2 managed to bring into existence a deed of gift dated 10th January, 1967 said to have been executed by Gomoti Debi but the said deed is also fraudulent, illegal and an inoperative document brought into existence without the knowledge of Gomoti Debi. Gomoti Debi was physically and mentally incapable of executing any deed since one year before her death. The defendant No. 1 had no title to the property and was not in possession of the property as owner of the same. (o) The plaintiff had been realising rent of the Schedule 2 property from the proforma defendant No. 3 but the defendant No. 1 in order to claim title to the property brought a Title Suit No. 206 of 1967 against the defendant No. 3 for eviction from the Schedule 2 property in the Court of Munsif of Purulia. The said suit was contested by the defendant No. 3 but unfortunately, the said suit was decided in favour of the defendant No. 1. The said Title Suit no. 206 of 1967 was really a title suit in the garb of eviction suit. By the decision of that suit, a cloud has been cast upon the title of the plaintiff in the Schedule 1 property. Moreover, the defendant No. 2 also denied the title of the plaintiff and refused to pay rent of the premises described in Schedule 3 of the plaint, which was in occupation of the defendant No. 1 and other members of his family as a monthly tenant. (p) The defendant No. 1 being emboldened by the decree of the said title suit had been giving out that the plaintiff had no right, title and interest in the property. The said decree passed in the suit for eviction against the defendant No. 3 was not binding upon the plaintiff as she was not a party to the suit and as dispute had been raised as regards the plaintiffs title, she had been compelled to file the present suit. ;