- (1.) THIS Second Appeal is directed against the judgment and decree dated 3rd December, 1992 passed by learned Additional district Judge, 1st Court, Howrah allowing the appeal and thereby dismissing the suit on contest after reversing the judgment and decree dated 27th of june, 1990 passed in Title Suit No. 20 of 1985 by the learned Assistant District judge, 3rd Court, Howrah whereby the suit was decreed on contest.
(2.) BEREFT all necessary verbiages the plaint case of the appellant-plaintiff is that the suit properties comprised in good number of plots appertaining to khatian No. 1369 in Mouza - Khariap under P. S. Amta in the district of Howrah belonged to Smt. Parul Bala who died in 1940 leaving behind her three sons i. e. Biswanath, Baidyanath and Tarak Nath. Biswanath is the defendant No. 3, baidyanath is proforma defendant No. 5 and Taraknath is the plaintiff. Some time after the death of Parul Bala her husband Nanda Kumar Pal became untraced and remained unheard for long 40/41 years and is considered to be dead in the eye of law. Each of the three sons of Parul Bala who inherited the suit properties has l/3rd share and each of them is in possession of the suit properties according to their respective shares. Biswanath is the eldest of the three brothers and after their father became untraced he would look after to other brothers who were at the material time minors. During the minority of the plaintiff and Baidyanath, Biswanath transferred their shares in the suit properties to the defendant No. 1 and defendant No. 4 by several deeds during the period from 1959 to 1966. The plaintiff and the proforma defendant No. 5 Baidyanath had no knowledge of such transfers. Biswanath had no authority to make as he was neither the natural guardian nor defacto gurdian of Taraknath and Baidyanath. The proforma defendant No. 5 baidyanath on attaining majority sold his share in respect of some of the properties to defendant No. l on 14th of December, 1966. In the middle of the month of January 1982 the defendant No. 1 and 2 proclaimed that they had purchased the suit properties from the defendnat No. 3, Biswanath and threatened the plaintiff with dispossession. Having searched the necessary documents in the office of the Registrar of Howrah on 22nd February, 1982 the plaintiff came to know of such transfers which were fraudulently and surreptitiously made in a mala fide manner by his brother Biswanath in favour of the defendant Nos. l and 2. All these transfers are void, illegal, collusive and fraudulent. The deeds of conveyances in relation to the suit properties conveying share of Taraknath and Baidyanath by Biswanath are dated 20th january, 1960, 15th September, 1960, 2nd December, 1960 and 10th december, 1960. Yet there is another deed of conveyance dated 14th december, 1966 which was allegedly executed by defendant No. 3 in the name of the proforma defendant No. 5. The plaintiff claims to be in continuous possession of the suit properties. The defendant No. 3 is further said to have executed two other deeds of conveyances on 23rd November, 1959 and 26th june, 1955 in respect of some portions of the suit property to the defendant no. 4 and such transfers were also fraudulent and void.
(3.) THE defendant No. 1 and defendant No. 4 filed two separate written statements denying the plaint narrative contending inter alia that the plaintiff was all along aware of series of sales which were effected by Biswanath, the defendant No. 3 for the benefit of the minors as he had no other means to maintain them. The defendant No. 1 has been in possession of the suit properties by virtue of purchase. The fact of the matter is that the proforma defendant No. 5 Baidyanath instituted a Title Suit being T. S. No. 229 of 1970 in the Court of the learned Munsif, 3rd Court, Howrah against the defendants and the present plaintiff as a proforma defendant praying for same relief but became unsuccessful, and the present plaintiff has been set up by the other brother suppressing the fact of dismissal of the previous suit instituted by proforma defendant No. 5.;