LALIT MOHAN BHOWMICK Vs. KSHIRODESWARI DAS

JUDGEMENT

(1.) This appeal is from the judgment and decree passed by the learned Subordinate Judge, 7th Court at Alipore, reversing those of the learned Munsiff passed in a suit brought by the present respondents as plaintiffs for declaration of title and recovery of khas possession on the following allegations.

(2.) The suit was originally brought by one Smt. Imaman Bibi who later was substituted by the present plaintiffs as the latter were transferees from the said Smt. Imaman Bibi of the said suit property. In May, 1950 the said Imaman Bibi left the suit property which belonged to her because of communal troubles. The defendants taking advantage of the fact that the suit property was lying vacant committed trespass and pulled down structures standing thereon and raised some new structures. The said original plaintiff Imaman Bibi tried to recover property after peace was restored but she failed to get back the property from the defendants in spite of the assurance given by the defendants that they would vacate the suit property after they succeeded in getting some accommodation elsewhere.

(3.) The defendants denied that Imaman Bibi was the owner of the suit property or that she left the same in May, 1950. The defence case is that the defendants acquired title by adverse possession of the suit property for more than 12 years preceding the date of the institution of the suit. The defendants also denied that on being requested by the plaintiffs to vacate the suit property they assured that they would do so. Originally the suit was dismissed by the learned Munsif but on an appeal being preferred the Court Of Appeal below sent the case back on remand in the learned Munsiff for retrial. The appeal court found that the elements of adverse possession were not at all discussed by the learned Munsiff and that the materials on record were rather scanty. It was also observed by the Court of Appeal below that under the law Imaman Bibi was to satisfy that she was in possession of the suit property within a period of 12 years prior to the institution of the suit, otherwise, she could not recover possession of the suit property from the defendants. The learned Munsiff was directed to give the parties an opportunity of adducing such evidence as they would like to adduce for proving their respective cases.