SUKHESH CHANDRA GHOSE Vs. BINDU BASHINI DEBYA

JUDGEMENT

(1.) This is an appeal by the plaintiff from the appellate decision of the learned Additional District Judge at Jalpaiguri modifying the decision of the learned Subordinate Judge at Jal-Paiguri in Title Suit No. 13 of 1969 for declaration of title, recovery of possession and raesne profits.

(2.) The plaintiff's case was that one Keramuddin was the owner of the suit Dremises comprised in holding No. 144, in Ward No. 16 of Siliguri Municipality as described in the schedule to the plaint. He sold the suit premises to Sawarmal Tulsan by a registered deed of sale dated 3-7-1961. Thereafter, the plaintiff purchased the suit premises from the said Sawarmal Tulsan bv a registered deed of sale dated 22-2-1965 for a consideration of Rs. 4,000/- and became the absolute owner of the same. The pro forma defendant No. 5 was the eldest son of the defendant No. 1 and the defendants Nos, 3 and 4 were the other two sons of the defendant No. 1 and the defendant No. 2 was the widow of pre-deceased son of the defendant No. 1 Smt. Bindubasini Debi. The pro forma defendant No. 5 as the head of the family of the defendants was a monthly tenant in the suit premises at a rent of Rs. 25/- per month payable according to Bengali calendar months under Keramuddin. He vacated the suit premises in Agrahayan 1362 B. S. and since then he lived separately from the principal defendants in another house. The principal defendants thereafter, possessed the suit premises illegally without any right, title or interest therein.

(3.) The principal defendants contested the suit by filing a written statement and an additional written statement, Their case was that they as refugees from East Pakistan came to Siliguri town and thereafter began to reside in the suit premises from the 1st Aswin of 1354 B. S. and that since then they were in adverse possession of the suit premises for more than 12 years. Thus they acquired title to the suit premises. The pro forma defendant No. 5 never occupied the suit premises and he all along lived separately from the principal defendants since their migration from East Pakistan. The alternative case of the defendants was that assuming and not admitting that the pro forma defendant No. 5 was a monthly tenant in the suit premises under the previous landlord Keramuddin, his alleged tenancy was not determined according to law and hence the plaintiff could not succeed in the present suit for recovery of possession of the suit premises.