KHONDKER ANSAR AHMED Vs. A.T.M. MONSUR ALI MALLIK

JUDGEMENT

(1.) These two appeals by leave are directed against the judgment and order dated 13.08.1995 passed by a Single Bench of the High Court Division in Civil Revision No.1222 of 1981 (heard with Second Appeal No.116 of 1979) discharging the Rule issued in the Civil Revision No.1222 of 1981 and allowing the Second Appeal No.116 of 1979 and thereby decreeing both the Title Suit Nos. 984 of 1962 and 134 of 1964.

(2.) Title Suit Nos. 134 of 1964 and 984 of 1962 were filed by the plaintiff respondents in the 1st Court of Assistant Judge, Khulna for ejectment of the defendant appellants as monthly tenants from Municipal holding Nos. 13 and 12 respectively. Admittedly the suit land measuring .17 acres being C.S. Plot No. 3871 appertaining to C.S. Khatian No. 1865 of Mouza Baniakhamar originally belonged to one Rakhal Das Bose and his wife. The case of the plaintiff is that their predecessor-in-interest, Baidyanath Chatterjee purchased the suit land from the original owners in the benami of his relative Srish Chandra Bhattacharjee by a registered kabala dated 28.07.1927. Subsequently he divided the suit land into two equal parts and created two separate Municipal holding being holding No. 12 (new 23) and holding No; 13 (new (24). Baidyanath Chatterjee filed a suit being Title Suit No. 102 of 1958 in the Court of Subordinate Judge (now Joint District Judge), Khulna for a declaration that he purchased the suit land from the original owners in the benami of Srish Chandra Bhattacharjee who was his benamdar. On the basis of a solenama, a compromise decree was passed by the learned Subordinate Judge (now Joint District Judge) on 22.08.1958 declaring that Srish Chandra Bhattacharjee was benamdar of Baidyanath Chatterjee. Baidyanath subsequently transferred the suit property comprising holding Nos. 12 and 13 to the plaintiffs by a registered kabala dated 04.11.1967. The plaintiffs brought two suits, one 984 in 1962 another 134 in 1964 for ejectment of the defendants as monthly tenants from holding Nos. 13 and 12 respectively on the ground of default in payment of rent and bonafide requirement of the owner.

(3.) The defendants contested the suits by filing written statements denying the material allegations made in the plaint. Their case, in short, is that the defendants were never the monthly tenants of the plaintiffs or of Baidyanath; that no landlord and tenant relationship existed between them and Srish Chandra Battacharjee died leaving two sons Dhirendra Bhattacharjee and Birendra Bhattacharjee. Baidyanath Chatterjee was the karmachary (employee) of Dhiren Bhattacharjee and Biren Bhattacharjee who migrated to India immediately after partition of India. Dhiren and Biren Bhattacharjee settled the suit properties along with other lands of the suit plot to defendants predecessor-in-interest, Khondker Abdus Salam on 17.05.1950 at a rental of Tk. 30/- on receipt of a salami of Tk. 4001/- by executing an amalnama (amaldari) and that the defendants have been possession the suit holding since then on the basis of the aforesaid settlement. Their further case is that Dhiren and Biren Bhattacharjee agreed to complete the transaction by executing registered documents in favour of the defendants predecessor-in-interest but they did not do so. They also asserted that the solenama filed in Title Suit No. 102 of 1958 was fraudulent and the plaintiffs did not acquire any interest in the suit property by virtue of the kabala dated 04.11.1961.