PRASANNA KUMAR SARMAH AND ORS. Vs. TULSINATH SARMA THAKUR AND ORS.

JUDGEMENT

(1.) THE Plaintiff's case is that the suit land together with some other lands of the same patta originally belonged to Defendant No. 1, who mortgaged the same to the father of the Plaintiffs Nos. 1 and 2. As the Defendant No. 1 failed to redeem the mortgage, the entire patta land was sold and the Plaintiffs Nos. 1 and 2 purchased it at auction sale for Rs. 400/ - Sale certificates were issued by the Munsiff on the 22nd December, 1939. At that time, the Plaintiffs Nos. 1 and 2 were minors, aged 6 and 4 years respectively and at the execution proceedings, they were represented through their guardian appointed by the Court. On the 19th April, 1940, possession was given over this land to the guardian of the Plaintiffs. The land was managed by Plaintiff No. 3, the mother of Plaintiffs, Nos. 1 and 2 Maisena Devi, pro forma Defendant No. 2 is the step -mother of Plaintiffs Nos. 1 and 2, and is the daughter of Defendant No. 1. Plaintiff No. 3 is the mother of Plaintiffs Nos. 1 and 2. She and Defendant No. 2 were living together after the death of their husband and Defendant No. 1, the father of Defendant No. 2, occasionally used to visit his daughter. Plaintiff No. 3 sold to Defendant No. 1 on the 19th of February, 1942, by a registered sale deed 8 bighas 3 kathas and 5 lechas of land of the disputed patta and delivered possession thereof to him. The remaining 7B -4K -2 lechas comprised by two, dages, being the land in suit, remained, in the possession of the Plaintiffs.

(2.) THE Defendant No. 1 after purchasing the major share of the patta land assured to Plaintiff No. 3 that he would get the names of Plaintiffs Nos, 1 and 2 mutated in respect of their shares. Management of the land, however, was done by Defendant No. 1 as he was a co -sharer in the patta. After some time, Defendant No. 2 went to live with Defendant No. 1. The Plaintiff's No. 1 and 2, after attaining majority, wanted to manage the suit land and the Defendant No. 1 thereafter; started Interfering with the rights of the Plaintiffs. There were several criminal litigations between the parties. Thereafter, the present suit was filed by the Plaintiffs for a declaration of their right and title over the disputed land and for possession

(3.) THE trial Court accepted the case of the Plaintiffs and repelled the contention of the Defendant No. 1 that the suit was barred by limitation and that the land was relinquished in favour of Defendant No. 2 by the Plaintiff No. 3. On appeal, the learned District Judge has reversed the decision of the trial Court. The only point on which the District Judge has held in favour of the Defendants is that the suit is barred by limitation. The District Judge has held that the deed of relinquishment, which is marked Ex. "C", relied upon by the Defendants, cannot be admitted in evidence, as it is not registered. Thus, the Defendants cannot claim any title to the property under this deed of relinquishment. It is also admitted that the Defendant No. 1 purchased in the year 1942 a major share in the patta. Thus, in the year 1942, he admitted title to the property of Plaintiffs 1 and 2 and unless the relinquishment deed is a valid deed and passed the title to the Defendants, the title of the land remained with the Plaintiffs. Having held that the deed of relinquishment was not registered and thus it could be ignored by the Plaintiffs, it was not necessary to get this document cancelled. The learned District Judge has held that it was a void able transaction and the Plaintiffs should have brought a suit within three years of their attaining majority under Article 44 of the Limitation Act, and as the suit was brought beyond three years of their attaining majority, the suit was barred by limitation.