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CALCUTTA HIGH COURT
Mukerji, J., Greaves, J.
Kalipada Basu & Ors. - Appellant
Versus
Fort Gloster Jute Manufacturing Co. Ltd. - Respondent
Decided On : 15-07-1926
possession - property dispute - [Transfer of Property Act, 1882, Limitation Act, 1908] - The court discussed the plaintiffs' claim for possession of the lands, the agreement for exchange of plots, and the defendant Company's possession and construction on the disputed lands. The court considered the applicability of the doctrine of part performance and the limitation period for specific performance of the contract. The court held that the plaintiffs were entitled to possession of the lands of Schedule ka, except for one bigha of land covered by a previous suit, and also granted a declaration in terms of prayer gha of the plaint.
Fact of the Case:
The plaintiffs, sons of Tarak Nath Bose, claimed possession of lands belonging to the joint family of Tarak Nath Bose and Hare Krishna Bose. The defendant Company had taken possession of the lands and erected structures. The plaintiffs sought a declaration of their title and recovery of possession.
Finding of the Court:
The court found in favor of the plaintiffs' title to the lands of Schedule ka and granted them relief in the form of a declaration and possession of the lands, except for one bigha of land covered by a previous suit. The other prayers of the plaintiffs were rejected.
Issues: The issues included the plaintiffs' claim for possession of the lands, the agreement for exchange of plots, and the defendant Company's possession and construction on the disputed lands. The court also considered the applicability of the doctrine of part performance and the limitation period for specific performance of the contract.
Ratio Decidendi: The court held that the plaintiffs were entitled to possession of the lands of Schedule ka, except for one bigha of land covered by a previous suit, and also granted a declaration in terms of prayer gha of the plaint. The court considered the applicability of the doctrine of part performance and the limitation period for specific performance of the contract.
Final Decision: The court set aside the decree passed by the lower court and granted the plaintiffs possession of the lands of Schedule ka, except for one bigha of land covered by a previous suit, and also a declaration in terms of prayer gha of the plaint. The decree of the lower court as to costs was upheld, and the plaintiffs were also awarded costs in the appeal.
JUDGMENT
Mukerji, J. - The plaintiffs are the five sons of one Tarak Nath Bose, deceased. Tarak Nath Bose and Hare Krishna Bose were two brothers. The latter died in 1881 leaving a widow who also died on the 7th November 1921. The former died on the 9th September 1921.
2. The plaintiffs' case appears to be as follows : The properties described in Schedule Ka to the plaint belonged to the joint family of the said two brothers. They consist of two items, Plot No. 1 being 4 bighas 10 cottahs of land held in mokurrari right under a deity Sree Sree Iswar Dakshina Ray; and Plot No. 2 being 3 bighas of land held in lakheraj right. The plaintiffs are now the owners of the said properties. In 1916 the defendant Company took forcible possession of a bigha of land out of Plot No. 1 of Schedule Ka and erected cooly huts thereon, and upon that Tarak Nath Bose, who was then an employee under the said Company, instituted a suit, being Suit No. 364 of 1916, for declaration of title, recovery of possession and mesne profits and for a permanent injunction restraining the defendant Company from erecting any structures thereon and for other reliefs. Tarak Nath Bose also instituted criminal proceedings in connexion with this forcible dispossession. The Company then prevailed upon Tarak Nath Bose to withdraw from the suit agreeing to give Tarak Nath Bose a plot of jote land 6 bighas in area and described in Schedule kha to the plaint and to excavate for him a tank 100 ft. square and also to erect a boundary wall round his homestead. On this agreement being reached Tarak Nath Bose withdrew from the suit which was eventually dismissed on the 8th April 1916. The execution of a formal deed of exchange which was agreed upon at the time was, however, put off. The Company gave Tarak Nath Bose the land aforesaid which the latter continued to-be in possession of by cultivation thereof. In 1917 the Company wanted to have some more landa and there were negotiations between them and Tarak Nath Bose for the purchase of plot No. 2 of Schedule ka, as the result of which Tarak Nath Bose made over possession thereof: to the Company, it being arranged that the Company would pay its proper price. The Company thus took possession of this plot as well and erected structures thereon. Subsequently the Company asked for and obtained the documents relating to the two Plots, Nos. 1 and 2 in order to execute the deed of exchange and the kobala, but thereafter did nothing in that direction. Thereafter in 1918 the Company dispossessed Tarak Nath Bose from, the land of Schedule kha. This led to open rupture between the parties and in order to put Tarak Nath Bose into further trouble the Company instituted a suit against him for ejecting him from his homestead. Tarak Nath Bose filed a wiitten statement denying the Company's right to eject him and characterizing the suit as malicious and as being the outcome of the grudge which the Company bore against him for his refusal to part with the homestead for which, he alleged, the Company had offered a price of Rs. 6,000 which was inadequate. In the said written statement Tarak Nath Bose also set out what the Company had done in respect of Plots Nos. 1 and 2 of Schedule ka. The suit ended in a compromise, dated the 16th April 1919,'under which the Company purchased the homestead for Rs. 6,000, and there was a condition in the compromise, that both parties would amicably settle between them the dispute relating to the said two plots. This dispute, however, was not settled as agreed upon and Tarak Nath Bose eventually died.
3. After the death of Tarak Nath Bose on the 14th December 1921 the plaintiffs instituted the present suit. The main prayers in the plaint were as follows:
(ka). - That possession of the whole of the land described in Schedule ka below may be given to the plaintiffs upon a declaration of their title thereto.
(kha) If for any reason the Court holds the above-mentioned contract to be en-forcible regarding the 41/2 bighas of
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