NAMITA GANGULY Vs. MANIK CHAND JAIN

JUDGEMENT

(1.) The instant Second Appeal is directed against judgment and order passed by the learned Additional District Judge, 3rd Court, Howrah on 28-2-79 in the Appeal No. 86 of 1978 setting aside the Judgment and Decree passed by the learned Munsif, 1st Court, Howrah on 28/2/78 in Title Suit No. 329 of 1962and this is at the instance of the substituted plaintiff.

(2.) The case of the original plaintiff before the learned trial court below was that the suit property was the ancestral property of the original plaintiffxShri Himangshu Bikash Ganguli and his other co-sharers. Subsequently, the suit property and some other properties were exclusively allotted to the original plaintiff by virtue of a partition decree passed in Title Suit No. 50 of 1949 by the subordinate Judge, 2nd Court, Howrah and since then the original plaintiff began to possess the said properties exclusively as his own. The defendant came to occupy the suit shop room even before the abovementioned partition as a tenant on a rental of Rs. 4/- per month payable according to English Calendar month under the original plaintiff and his co-sharers. Unfortunately, the defendant got his name wrongly recorded as a Mat tenant in respect of the suit property in the R.S. Record-of Rights clouding thereby the right, title and interest of the original plaintiff in the suit property. Hence, the original plaintiff was compelled to file Title Suit No. 329 of 1962 against the defendant seeking certain declarations etc. However, during the pendency of the suit, the original plaintiff expired and in his place the name of the present plaintiff was substituted inasmuch as before the death of original plaintiff, he transferred the suit property and other properties to the present plaintiff-appellant by executing a registered deed of gift on 13-6-69 and since then the present plaintiff being the wife of deceased and transferee has been possessing the same as an absolute owner and continued the suit in her own name as the substituted plaintiff.

(3.) The defence of the defendant before the learned Court below was that he took lease of the suit property from Shri Bhabataran Ganguli, the karta of the joint family of the original plaintiff and his co-sharers and constructed two rooms on the suit land and started living there as a non-agricultural tenant. In the suit, it was the further defence of the defendant that he was the Mat tenant in respect of the suit holding and accordingly got his name mutated in the records of the Municipality. Again, according to the defendant-respondent, the present plaintiff-appellant had no locus stand! to file the suit and that the alleged deed of gift dated 13-6-69 executed by the original plaintiff in favour of the present plaintiff-appellant was never acted upon. His further defence was that the suit property vested in the State of West Bengal and he became a tenant directly under the State.