SREE SANTASH KUMAR SARKER Vs. SREE SHANKER CHANDRA MONDAL

JUDGEMENT

(1.) This petition for leave to appeal, at the instance of petitioner (defendant-plaintiff opposite-parties),is directed against the order dated 30th January, 2006 passed by a Division Bench of the High Court Division in Civil Revision No.2721 of 2003 allowing the application.

(2.) Facts, leading to this petition, are that the respondent Nos.1 and 2 filed a suit being Other Class Suit No. 102 of 1991 in the 1st Court of Subordinate Judge (now Joint District Judge), Rajshahi against the petitioner Nos.1 and 2 and respondent Nos. 3-5 for cancellation of the compromise decree dated 25-10-1998 of Title Appeal No. 251 of 1996 passed by the Subordinate Judge (now Joint District Judge) Rajshahi and also for a declaration of title stating that the suit land originally belonged to Nitai, Gopal, Nirmal, Ajit, Krishnapada and Subhadra Rani, who sold the suit properties infavour of Sita Nath and Profulla Bala in 1976, who obtained possession. The said Sita Nath and Profulla was husband and wife, who had no child therefore in order to retain the lineage of inheritance they adopted Nitai Chandra Mondal, father of the plaintiff-petitioners in 1964 and thus Nitai Chandra Mondal came to the house of Sita Nath and remain there and being reared up as son and after the attainment of marriageable age Nitai Chandra Mondal was married with defendant No.3 and took her to live with Nitai Chandra Mondal in the house of Sita Nath. Thereafter, Sita Nath died leaving adopted son Nitai Chandra Mondal and his wife Profulla Bala. After the death of Sita Nath under advice of local Matbars, Profulla Bala registered a deed of gift in favour of plaintiffs on 09-12-1982. Thereafter, Profulla Bala died leaving Nitai Chandra Mondal and he (plaintiff) used to posses the suit properties exclusively to the exclusion of defendant opposite-parties for more than 12 years. The defendant-opposite-party Nos.1 and 2 with a view to grab the suit properties filed a suit being Other Class Suit No. 238 of 1983 in the Court of Munsif, Sadar at Rajshahi giving a false statement that they are close relations of Sita Nath and Profulla Bala and created a forged deed. Thereafter, the suit was transferred in the Court of Assistant Judge at Pabna and was renumbered as Other Class No.279 of 1984 and the suit was dismissed on contest. Thereafter, defendant-opposite-parties preferred an appeal being Title Appeal No.249 of 1986 and then during the pendency of the appeal Nitai Chandra Mondal died leaving 2 sons and a wife and 4 daughters. When Nitai Chandra Mondal died then the plaintiff petitioners were minors and as such guardian of the minors and mother, defendant No.3 used to contest the appeal. During the period their mother, became morally weak and she acted against the benefit of the minors and that the minors became day labourer and they were reared up as servant in other family and their mother changed religion and acted to the determent of the interest of the minors and their mother was a widow, illiterate, immoral and later on changed religion and for that she acted in the hands of the defendants and then defendants were able to allure her and obtained a fraudulent solenama. She was not given independent advice. On 25-03-1991, a man of defendant No.1 disclosed that the Title Appeal No. 249 of 1986 was decreed in favour of the defendants on compromise then the petitioners came to know that very soon the defendants would take possession of the suit properties. Thereafter, they obtained the certified copy of the sole decree dated 15-10-1989 and filed the suit.

(3.) The defendant-petitioner Nos. 1 and 2 contested the suit by filing joint written statement denying all the material averments of the plaint and alleged that the suit is not maintainable in its present form, the suit is barred by limitation and also bad for defect of parties. The specific case of the defendant-opposite-party Nos. 1 and 2, in short, is that the suit land originally belonged to Nitai, Gopal, Nirmal, Ajit, Krishnapada and Subhadra, who sold the suit properties by registered kabala dated 18-12-1996 in favour of their maternal aunt of the defendants and she after purchase erected dwelling house, paid rent and possessed for her. The said Profulla Bala while constructing his house gifted the suit properties in their favour and delivered possession and thereafter, they completed the unfinished work of constructions by their own money. Profulla Bala on 24-08-1982 executed a deed of gift and registered on 21-12-1982. After execution of the deed her hand was fractured and for that before 21-12-1982 she could riot register the deed and in this way the defendants acquired title. On 28-02-1983, Profulla Bala died issue less and these defendants performed all the funeral functions of Profulla Bala. The plaintiffs father tried to dispossess the defendants and then the defendants filed Title Suit No.238 of 1983 and thereafter, the suit was transferred in the Assistant Judge, Puba and was renumbered as 279 of 1984 and the same was dismissed. Then the defendant preferred an appeal before the District Judge, Rajshahi being Title Appeal No.249 of 1986 which was transferred in the Court of Additional District Judge, 1st Court, Rajshahi and then the mother of the plaintiff-defendant No.3 of that suit on behalf of her minor sons and daughters compromised the suit for their benefit and as such the suit was decreed on compromise in favour of the defendant-opposite-parties and the mother of the plaintiff-defendant No. 3 took Tk.60,000/- as soletium. The plaintiffs have got no title and possession and therefore the suit is liable to be dismissed with costs.