PARITOSH NASKAR Vs. SITAL MONDAL

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dated 20.5.1993 and 29.5.1993 respectively passed by Sri S.K. Bhadra, learned Assistant District Judge, Alopore 24-Parganas (Sourth) affirming the judgment and decree dated 25.5.1992 passed by Sri S.N. Bandapadhyayay, learned Munsif, 3rd Court, Alipore, 24-Parganas (South) in connection with Title Suit No. 127 of 1983.

(2.) The suit before the learned lower Court was for declaration of title, eviction of the licensee and damages. The learned trial Judge was pleased to dismiss the suit which was affirmed by the learned lower appellate Court. The substantial question of law for the determination in .the present appeal is formulated as below :

(3.) The plaint case in brief is that the plaintiff purchased the suit property by two registered deeds and got his name mutated. It is also the case of the plaintiff that after coming into the possession of the suit property he raised structures which includes four rooms. The defendant is the nephew of the plaintiff. The defendant approached the plaintiff for his accommodation and the plaintiff allowed him to stay in one room. Thus, the defendant started living there in the joint mess with the plaintiff. The defendant used to look after the house hold affairs and paid taxes to the Municipality and as such the defendant used to keep all the papers of the Municipality in his custody. Subsequently in 1976 the defendant was allowed to stay in another two rooms. Sometimes in March, 1980 differences started cropping up between the parties and as such the plaintiff asked the defendant to vacate the suit premises. But ultimately, the defendant after taking some time did not vacate the suit premises. Thereafter plaintiff sent a registered notice to the defendant for vacating the suit premises and in reply to that notice the defendant claimed 8 annas share in the suit property. Thereafter on enquiry the plaintiff came to know that the defendant fraudulently got his name recorded in column No. 23 of the record of rights and so the suit was filed. The defendant contested the suit before the learned trial Judge and denied all the material allegations. It was, inter alia, stated by him that in the year 1356 B.S. the plaintiff and the defendant forcibly acquired .0855 acres of land in plot No. 91 and constructed separate dwelling houses thereon with demarcation of the respective possession and since then both the parties have been residing there without interruption under the knowledge of the owner of the property M/s. Calcutta Properties Limited. It is also stated by the defendant that both the parties forcibly acquired a pond measuring .1720 acres in 1356 B.S. and since then both of them have been possessing the same jointly by rearing fish. It is claimed that the defendant has mutated his name in the record of the Municipality in respect of his half share in plot No. 91 Khatian No. 109 and he has been paying municipal taxes thereof. It is also claimed by the defendant that his portion in the suit property has been distinctly shown in the location plan of the municipality and separate premises number was allotted as Z-3/442/A, Naskar Para Lane, P.S. Metiabruz, Calcutta 44. It is the definite case of the defence that the purported deeds dated 21.8.1974 and 1.4.1975 standing in the name of the plaintiff are collusive and ficititious.