IMPORTANT POINT
A plaintiff must seek recovery of possession within one year of auction sale confirmation; failure to do so bars the suit under the Specific Relief Act.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This second appeal has been preferred by the appellants/plaintiffs against the judgment and decree dated 28.01.1984 passed by learned Additional Sub Judge, Murshidabad. By the impugned judgment learned court below was pleased to set aside the judgement and decree passed by the Trial Court in Title Suit no 41 of 1977 dated 07.03.1983.

2. Before the Trial court plaintiffs/appellants filed aforesaid Title Suit no. 41 of 1977 contending that Heraj Seikh, Minaj Seikh, Khokon Bibi and Zeratun Bibi were the original owners of the properties described in ‘Ka’ Schedule to the plaint under Zamindar Purna Chandra Tribedi. Said Zamindar Purna Chandra filed a rent suit being no 1862 of 1937 against aforesaid owners for arrear of rent of Rs. 46/-. Since the aforesaid occupiers failed to pay the decretal amount of Rs. 46/-, the property mentioned in ‘Ka’ schedule was auctioned and the present plaintiff and his brother Joulus Sk purchased the ‘Ka’ schedule property form the auction sale on 21.11.1938 and took possession of the properties. The said sale was confirmed on 20.01.1939.

3. Joulus Sk thereafter died leaving behind his brother i.e. plaintiff as only legal heir and as a result of which plaintiff inherited the share of Joulus and became full owner of the ‘Ka’ schedule property to the plaint and was in possession of the same. Subsequently he sold some of the properties to Moslem Sk. and Akul Sk. Said Muslan and Akul are the owners of their purchased share and after getting possession, they have also recorded their names in the R.S Record of Right. After the auction purchase the plaintiff paid rent to the then landlord and after abolition of Zamindari system he has paid rent to the Government all along.

4. Plaintiff’s further case is that the plaintiff is an illiterate person and defendant no.1 is his cousin brother. The plaintiff on good faith asked the defendant no. 1 to record the name of plaintiff in the R.S Record of Right in respect of said property but taking advantage of his foolishness, the defendant no.1 falsely recorded his name in respect of some properties in ‘Ka’ schedule to the plaint, which is described in ‘Kha’ schedule. Plaintiff further contended that the R.S recording of ‘Kha’ schedule properties in the name of defendant no. 1, has no basis and completely erroneous. The defendant no. 1 has no right title or possession over the suit properties. Accordingly the suit was filed for permanent injunction.

5. Defendant no. 1 contested the said suit by filing Written Statement contending that the R.S recording is not at all erroneous but it was recorded on the basis of possession of the properties. The defendant denied that the plaintiff purchased the ‘Ka’ schedule property from auction sale. Defendant’s case is defendant is paying rent and defendant’s further case is plaintiff is the owner of more or less eight annas share in said ‘Ka’ schedule property but in column no. 13 of Record of Rights, more than eight annas share recorded in the name of plaintiff, which is erroneous. Defendant further contended that the suit is hit by section 57 of the West Bengal Estates Acquisition Act and since the suit property has been correctly recorded in the name of the defendant on the basis of his possession, defendant has prayed for dismissal of the suit.

6. Learned Trial Court came to a finding that there is no document in favour of defendant no. 1, on the basis of which the suit properties were recorded in his name and accordingly he declared plaintiff’s right title interest and possession over the ‘Kha’ schedule suit property with further observation that the recording in R.S Record of Right in the name of defendant no.1 is erroneous and thereby granted permanent injunction in favour of plaintiff.

7. Being aggrieved by that order defendant/appellant preferred First Appeal before the court below being Title Appeal no. 47 of 1983. After hearing both the parties learned court below came to a finding that the