ABDUL RAHMAN Vs. HALIMA KHATUN

JUDGEMENT

(1.) THIS appeal arises out of the judgment and decree dated 18th July, 1974 passed by the learned Additional District Judge, Alipore in Title Appeal No. 635 of 1973 affirming the judgment and decree passed by the learned Munsif, 3rd Court, Alipore in Title Suit No. 369 of 1969. The defendant is the appellant in the instant appeal and the suit was instituted by one Kazi Golam Hussain, the predecessor-in-interest: of the present plaintiff respondents No. 1 to 4 against the defendant appellant and also impeding the perform respondents No. 5 to 7 for declaration of title to the suit property, recovery or possession of the same and for mesne profits and injunction. The case of the original plaintiff was inter alia that he was the son of Kamarunnessa brother's son. Kamarunnessa took settlement of the suit land from the Mutwalli of the wakf Estate of Hazi Amin Mistri and had raised structures on the suit land. The preformed defendants No. 2 and 3 were the present Mutwalli of the Wakf Estate. The said Kamarunnessa lived in one of the. two rooms and she had let out two other rooms to tenants. Kamarunnessa died on 5-8-61 leaving the plaintiff as her sole heir. The defendant No, 1 was a monthly tenant in respect of a room of Kamarunnessa. The plaintiff had brought a suit earlier being Title Suit No. 147 of 1964 in the First Court of the Munsif at Alipore for eviction of the defendant No. 1 on the ground of default. In the said suit, the defendant No. 1 denied relationship of landlord and tenant between the parties and he had also denied the plaintiff's right to the property on the score of succession to Kamarunnessa' estate. The plaintiff lost in that suit and thereafter preferred an appeal but the plaintiff ultimately with drew, the said appeal with the leave of the court. The defendant thereafter took a collusive patter from the present Mutwalli and got his name mutated in the records of the Calcutta Corporation. The defendant No. 1 also dispossessed the plaintiff on 16th October, 1966 from the entire suit property and accordingly, the said suit had to be instituted for recovery of possession from the defendant No. 1 upon declaration of title.

(2.) THE defendant No. 1 contested the suit by filling a written statement inter alia denying all the material allegations of the plaintiff. The defendant No. 1's case in short was that he, as Kamarunnessa' caretaker, lived in a room of the suit property and he was also a relation of the said Kamarunnessa. Kamarunnessa gave the suit property to the defendant No. 1 by an oral herbal and the defendant No. 1 also took a fresh settlement of the suit land by a registered patter dated 5th February, 1963. The defendant No. 1 further contended that the plaintiff was not an heir of Kamarunnessa and accordingly he had no title and interest in the suit property and his suit was also barred by limitation and on the principle of Resjudicata. The said suit was also barred under the provisions of Order 23 Rule 1 of the Code of Civil Procedure,

(3.) THE trial court on consideration of the materials of record and evidences adduced in the case, came to the finding that the plaintiff was sole heir of Kamarunnessa and the defendant failed to prove his case of acquisition of title through an oral herbal made in his favour by Kamarunnessa who was admittedly the original lessee. The trial Court was of the view that as the plaintiff Was the heir of Kamarunnessa, subsequent patter obtained by the defendant No. 1 from the Mutwalli was of no consequence and the purported lease not having been executed in accordance with Section 107 of the Transfer of Property Act, the same was also invalid in any event. Accordingly the suit was decreed by the trial Court allowing the plaintiffs to obtain recovery of khas possession of the suit properties by evicting the defendant No. 1 there from.