LAKSHMI NARAYAN MONDAL Vs. AMIYA GHOSH AND ORS.

JUDGEMENT

(1.) Plaintiff is the appellant in this case of reversal of judgment.

(2.) The appellant /plaintiff filed a suit alleging that the suit property being part of plot Nos. 1454 and 1455 together with another plot No.1453 originally belonged to the plaintiff's father Sachinandan Mondal and his uncle Jashodanandan Mondal in equal shares. Though they had separate houses thereupon but possessed those plots which were lying in amalgamated condition in ejmal. The plaintiff's father died in 1996 leaving behind sons being plaintiff and proforma defendant No.4 Narayan Mondal, wife, proforma defendant No.5 Bimola Mondal and daughters being the defendant No.3, Shibani Pal and one Sabitri Ghosh as his only heirs. Both Shibani and Sabitri were married and were residing in their respective matrimonial homes. Jashodanandan Mondal had no wife or issue and was looked after by the plaintiff. Jashodanandan Mondal gifted the suit house wherein he used to reside along with other properties to the plaintiff by a registered deed of gift dated 6th of January, 1970 and handed over possession. In the said deed of gift Jashodanandan Mondal gifted half portion of plot No.1454 having a total area of seven decimals but wrongly it was noted as three decimals. Jashodanandan Mondal also gifted two decimals of vacant land in plot No.1454 on the same date i.e., on 6th of January, 1970 to defendant No.3 who was a widow and used to look after Jashodanandan Mondal. Jashodanandan Mondal died in the year 1982 and thereafter plaintiff constructed a house with the consent of his brother on plot No.1455 on the south west portion. The ancestral house of the plaintiff, the house of Jashodanandan and newly constructed house of plaintiff were shown in the sketch map annexed to the plaint. Defendant No.1 Amiya Ghosh was the only daughter of defendant No.3 Shibani Pal. Amiya Ghosh was married with Muktipada Ghosh (defendant No.2). Amiya and Muktipada started to reside in the suit house which was received by plaintiff from his uncle through gift, on and from 14th of April, 1989 as a licensee on the undertaking that soon they would go away after constructing their house. As those defendants refused to vacate said house plaintiff revoked the licence on 19th of July, 1992. But in spite of said revocation they did not leave the suit house. Hence was the suit for eviction after revocation of licence and for 'khas' possession. The defendant No.3 has transferred the portion of plot No.1454 which was received from Jashodanandan Mondal to his son -in -law i.e., defendant No.2. Though the defendant No.3 is the owner of 1/5th portion out of total half portion of plot No.1454 owned by her father as per Hindu Succession Act but she had no right to reside therein or to permit any other to live therein.

(3.) Defendant No.1, 2 and 3 contested said suit by filing a joint written statement. Denying material allegations of the plaint they contended inter alia that the suit was bad for defect of parties as Sabitri Ghosh, since deceased, or her heirs were not impleaded as parties in the case. They, however, admitted that Sachinandan Mondal and Jashodanandan Mondal were the owners of plots in equal shares. When defendant No.3 became widow, her daughter defendant No.1 was only six months old. She was brought by Jashodanandan and looked after her. Jashodanandan gifted four decimals of suit plot No.1454 and two decimals of plot No.1455 to defendant No.3 through a registered deed of gift dated 5th of January, 1970 and surrendered possession therein. Defendant No.3 while owning and possessing said land gifted the same to his son -in -law defendant No.2 by a registered deed of gift dated 22nd of September, 1988 wherein plaintiff signed as a witness. On 16th of October, 1990 there was unregistered 'Bantannama' with regard to plot No.1454 and 1455 between plaintiff and defendant No.2 in presence of other persons. The defendant No.2 thereafter constructed a new house on said six decimals of land with necessary permission from proper authority and raised boundary wall. Defendant No.2 also took loan from L. I. C. I. for said purpose. The question of granting licence was false. As defendant No.3 asked the plaintiff to partition the suit property, the false case was filed.