RAMAN CHANDRA DEY AND ORS. Vs. GOUR ALIAS GHARBARAN GUR AND ORS.

JUDGEMENT

(1.) THIS is Plaintiffs' appeal. The facts as set out in the plaint are that one Bhagmunia Gaur and her son Ghar Baran Gaur were the owners in possession in equal shares in respect of the entire lands pertaining to Patta No. 242. After the death of Bhagmunia Gaur, her two sons Ghar Baran Gaur, the Defendant No. 1, and one Lakhan Gaur, became the owners in respect of the entire disputed patta land to the extent of 12 annas and 4 annas share respectively. Defendant No. 1, who is the son of Bhagmunia Gaur, managed the property during the life time of his mother and also after her death. The Plaintiffs are six brOrs. . Out of these six brOrs., Mathura Mohan De separated from the joint family some 25 years ago. Plaintiff Nos. 1 to 4 used to reside in the main residence. About 30 years ago, Plaintiff No. 2 came to Silchar and entered in service. Thereafter he brought Plaintiff No. 3 with him for carrying on business there. Plaintiff No. 3 took settlement of some land out of the disputed land for starting business from Defendant No. 1.

(2.) ACCORDING to the allegations in the plaint, the settlement was made by Defendant No. 1 on behalf of the Defendants and his other co -sharers. Thereafter Lakhan Gaur, the brother of Defendant No. 1, sold his share of land out of the disputed patta land to the Plaintiffs. Lakhan Gaur executed a kobala in favour of Plaintiff No. 2 by receiving the price of the land from him on behalf of the Plaintiffs' family. Thereafter Plaintiff No. 2 on behalf of the other Plaintiffs got their names mutated in respect of the land purchased and the Plaintiffs claimed to be in continuous possession of the disputed land under the right of purchase from the brother of Defendant No. 1. Pro forma Defendant No. 6 also admitted the Plaintiffs as his co -sharers in occupation of the lands. The disputed land, according to the Plaintiffs' case, was never partitioned among the co -sharers and the co -sharers had been in joint possession of the land in respect of their shares in the property. The Plaintiffs on these allegations claimed the following reliefs:

(3.) WRITTEN Statement was filed by the contesting Defendant Gharbaran Gaur. In the defence mainly the case was that the disputed land of Patta No. 242 in the re -survey was included in Patta No. 83 of the Cadastral survey. When the cadastral survey was in force, Defendant No. 1 decided to purchase the land from the then owners Mustt. Anwar Bibi and Ors. and accordingly after selling the said land to the Defendant No. 1 Mustt. Anwar Bibi and Ors. handed over the right and possession to the Defendant No. 1. Bhagmunia Gaur became blind as she had an attack of small pox in early childhood. She was living all along with Defendant No. 1 and Defendant No. 1 was maintaining her throughout. When Lakhan Gaur, the brother of Defendant No. 1, was 12 or 13 years old, he separated from his other brOrs. . He neither maintained his mother at any time nor had any connection with the Defendant No. 1. The Defendant No. 1, however, thought that in case he died before his mother she might not have any means of her maintenance. With that in view, at the time of the execution of the kebala in his favour by Anwar Bibi and Ors., the Defendant No. 1 got included the name of his mother in that kebala. The whole price was paid by the Defendant No. 1 as his mother had no means to pay the consideration of the same. On the basis of the above purchase, the mother, according to the Defendant No. 1, had no title in the aforesaid property, and the Defendant No. 1 was alone the owner of the same. The remaining one -third share in the cadastral survey Patta No. 83 is said to have been purchased by Defendant No. 1 alone in which the mother had no share and that was not disputed. It was alleged by him that Plaintiff No. 3 took a settlement of the disputed land described in the schedule attached to the plaint for 10 years since 1st of Magh, 1340 B.S. corresponding to 15th January 1934 to the end of Pous 1349 B.S. corresponding to the last part of January 1943. It was not disputed Unit settlement was made in respect of some of the land of this patta with some of the Plaintiffs. Mainly the defence taken by the Defendant No. 1 in his written statement was that by the purchase from Must. Anwar Bibi and Ors., the mother acquired no interest in the land of Patta No. 242. Originally the land was in cadastral survey patta No. 83, but subsequently the land formed part of two pattas 242 and 307. The Defendant No. 1 mainly pleaded that the suit was not maintainable inasmuch as the vendor of the Plaintiffs, Lakhan Gaur, had no title to the property as the mother was not the owner of the property. If the mother was the joint owner of the property along with Defendant No. 1 by purchase from Must. Anwar Bibi and Ors., obviously after her death the property would devolve on the two sons in equal shares. The result of the two purchases was that Defendant No. 1 became the owner of 12 annas share because the share of the mother was divided equally after her death between her two sons. The Subordinate Judge dismissed the suit mainly on the ground that Defendant No. 1 became the owner of the property by adverse possession against Lakhan Gaur, the vendor of the Plaintiffs, and admittedly when the property was transferred to the Plaintiffs by Lakhan Gaur, he had no interest left in the property, and whatever interest he acquired by inheritance from his mother he lost it by adverse possession. The trial court observed that as the title of Lakhan Gaur had been lost by adverse possession, he inherited no property from his mother.