ARJUN SAMAL Vs. KAILASH CHANDRA KANUNGO AND ORS.

JUDGEMENT

(1.) THE suit is for declaration of title, confirmation of possession and injunction and in the alternative for recovery of possession. The disputed land constitutes 1. 69 acres as described in Ka schedule to the plaint. Admittedly it belonged to the Plaintiff. It is Bramhotar Bahel land. For nonpayment of arrears of road cess it was sold in auction for Rs. 13/on 25 -2 -1941. Plaintiff 's case is that the first Defendant was working as the Gumasta of Plaintiff 's maternal uncle (p.w. 6). Plaintiff had no money to pay the arrear of road cess and accordingly on his request p.w. 6 paid the money to be deposited by the first Defendant towards arrear of road cess. Without depositing that amount the first Defendant acted treacherously and purchased the disputed property in his own name in auction sale on 25 -2 -1941. He also took a paper delivery of possession on 10 -4 -1942 as per Ext. B. Some time after, the Plaintiff came to know of this. The first Defendant promised to execute a release deed in favour of the Plaintiff. He gave up service under p.w. 6 in 1955 as a suit for account was filed against him for misappropriation of money. There was a compromise in between p.w. 6 and the first Defendant in 1956. Thereafter the first Defendant executed a registered sale deed (Ext. E) on 4 -6 -1958 without consideration in favour of the second Defendant. The second Defendant in his turn threatened to interfere with the possession of the Plaintiff and accordingly the suit was filed on 22 -6 -1960. Despite the auction sale and paper delivery of possession in favour of the first Defendant, the Plaintiff was all through in possession and has acquired a title by adverse possession.

(2.) THE trial Court held that the first Defendant did not, purchase the disputed property in auction sale on behalf of the Plaintiff. Despite the purchase, however, Plaintiff was all through in possession and has acquired a title by adverse possession. He accordingly decreed the Plaintiff 's suit for recovery of possession and granted a permanent injunction. Against the trial Court decree, Defendant No. 2 filed an appeal which was dismissed by the learned Subordinate Judge on findings that the purchase by the first Defendant in Court auction was on behalf of the Plaintiff and the Plaintiff was in possession within twelve years of the suit. In terms he did not record a finding that the Plaintiff had acquired a title by adverse possession.

(3.) THE disputed property was purchased by the first Defendant in auction sale on 25 -2 -1941 in a certificate proceeding for arrear of road cess.