JUDGMENT :- This second appeal by the plaintiff arises from a suit of declaration of the plaintiffs title to the suit land and for recovery of khas possession therein and also for recovery of mesne profits for three years.

2. The case of the plaintiff Chandra Nath Mukherjee was briefly as follows. On 10-4-1937, defendant No. 2, Ram Dhani Barui took settlement of the plot described in item No. 1 of schedule Ka, measuring .03 acre, for erecting a dwelling hut thereon, no period being mentioned in the Kabuliat which was duly registered. The rent reserved was Rs. 6/- per year. On 30-10-1939, defendant No. 3, Rani Bala Dasi, executed a registered Kabuliat in respect of the plot of land described in item No. 2 of the schedule Ka, measuring also .03 acre, purporting to take lease of the land for an indefinite period at the yearly rental of Rs. 7-8 annas. This was also for the purpose of erecting a dwelling house. Rani Bala, defendant No. 3, was the wife of Ram Dhani, defendant No. 2, and though the settlement was taken by two different kabuliyats on two different dates, ultimately the two plots were regarded as comprising one holding and the defendants Nos. 2 and 3 erected a dwelling house thereon and lived there for sometime and paid rent to the plaintiff. But after 7 or 8 years Ram Dhani and Rani Bala left the place and defendant No. 1, Chulai Pashi, began to possess both the plots of land described in schedule Ka. The plaintiff never received any rent from defendant No. 1, Chulai Pashi and treated him as a trespasser. When the plaintiff went to take khas possession of the land from Chulai Pashi, after defendants Nos. 2 and 3 had left the place, defendant No. 1 gave put that he had purchased the land from Ram Dhani and Rani Bala by two sale deeds. But according to the terms of the lease which were granted to Ram Dhani and Rani Bala, they had no right to transfer their right as lessee in the land and there was a condition in the kabuliyats that if they transferred their lease-hold right the lease would be considered determined and the landlord would be entitled to take khas possession. The plaintiff, therefore, claimed that he was entitled to get khas possession of the suit land, and the plaintiff also claimed mesne profits at the rate of Rs. 36/- per year for the period of 3 years. The suit was instituted on 2-4-1947, that is, within 10 years from the date of the first kabuliyat executed by Ram Dhani.

3. Defendant No. 1 filed a written statement and contested the suit. Defendants Nos. 2 and 3 who were added as parties subsequently on the objection of defendant No. 1 also filed a written statement. The defence was that Ram Dhani and Rani Bala obtained lease verbally from the plaintiff about 2 years before the execution of the first kabuliyat by Ram Dhani, and that the execution of the kabuliyats by defendants Nos. 2 and 3 was obtained by fraud and undue influence and the defendants were not bound by the terms contained therein; further, that the kabuliyats though registered, did not take effect as instruments of lease because they were not executed both by the lessor and the lessee though they reserved an yearly rent. At the same time, the defence was taken that the defendants Nos. 2 and 3 had not sold their leasehold right to defendant No. 1 but had only mortgaged the same with defendant No. 1 and put him in possession, and there being no outright transfer, the plaintiff was not entitled to re-enter. It was alleged that in respect of the transaction effected between defendants Nos. 2 and 3 on one side and defendant No. 1 on the other side, there was intention to execute mortgage bonds, but sale deeds were actually executed through fraud on the part of an Ammuktear of the plaintiff who had actually got the documents written out.

4. The learned Munsif held that defendants Nos. 2 and 3 obtained possession of the suit land on the basis of the registered kabuliats dated 10-4-1937, and 30-10-1939, which were marked Exts. 1 and 1(a) respecti

Click Here to Read the rest of this document