ASHIM RANJAN CHOWDHURY Vs. JIBAN RANJAN CHOWDHURY

JUDGEMENT

(1.) THIS second appeal is directed against the judgement and decree dated 13th March, 1990 passed by the learned Addl. District Judge, 2nd Court, Jalpaiguri in O. C. Appeal No. 9 of 1989 affirming the judgement and decree passed by the learned Munsif, Jalpaiguri in O. C. Suit No. 26 of 1986 dated 30th November, 1988.

(2.) THE plaintiff-respondents filed the suit for eviction of the defendant-licences from the suit property upon revocation of licence. The plaintiffs case was that Chandra Kumari Ram and Ajari Kumari Ram were the owners in possession of 4 bighas and 14 cottahs of land recorded in C. S. Khaitan No. 2062 of Mouja Kharia, P. S. Jalpaiguri with one C. I. sheet structure standing on the land. They possessed the suit land by virtue of lease granted by Md. Sonaullah who was the recorded owner of the land. They sold the properties to Smt. Suniti Bala Chowdhury, wife of Akhil Ranjan Chowdhury by a registered sale deed dated 10th January, 1977. Suniti Bala is the deceased mother of the plaintiff. Suniti Bala died in 1933 leaving the plaintiffs and another son Chitta Ranjan Chowdhury as her heirs. Subsequently, Chitta ranjan Chowdhury died a bachelor and his share devolved upon his brother and sisters who are plaintiffs in the suit. After the death of his wife Suniti Bala chowdhury, Akhil Ranjan Chowdhury maimed Hiran Prova Chowdhury who gave birth to four sons who are the defendant Nos. 1 to 4 in the suit and three daughters who were all married and living in their respective husbands' house. Chitta Ranjan Chowdhury was a school teacher at different places outside jalpaiguri with little worldly knowledge or attachment and he died in 1981 in calcutta. Plaintiff No. 1 served as a Revenue Officer under the Settlement department. He retired in 1985 and permanently settled in the house described in schedule 'a' in the plaint. Plaintiffs' father retired as a senior Police officer in 1941 and began to reside permanently in the suit house of the plaintiffs and the deceased full brother and he died in 1979. After purchase of the land, the plaintiffs' mother reconstructed the C. I. sheet structure that stood upon the land and he converted it into a two roomed house with pucca plinth and wooden wall at her own costs and those rooms are in occupation of step mother of the plaintiffs and also of defendant No. 1. The defendants and their full sisters were born and brought up in the same house as dependants of their father. Their father constructed one ghar in the said house with money remitted by plaintiff No. 1 in which the plaintiffs are now residing and their father also constructed another ghar with money supplied by the plaintiff No. 1 and his elder brother Chitta Ranjan Chowdhury where defendant No. 4 used to reside previously. He allowed his married sister Joyashree defendant No. 5 to reside there. After the filing of the suit defendant No. 5 shifted to her mother's room and defendant No. 4 is occupying that room now. The defendants on attaining the age of majority used to reside in the said house by virtue of leave and licence granted by the full brothers and they were never required to pay any sum for their residence in the said plaintiffs house. During the revisional settlement operation plaintiff No. 1 was posted outside Jalpaiguri and Chitta ranjan Chowdhury was careless and callous about his properties and he was a man with religious bent of mind and did not live at Jalpaiguri. The plaintiffs or their brother Chitta Ranjan Chowdhury could not, therefore, appear before the Revenue Officer during the R. S. operation. Without making proper enquiry the names of defendant Nos. 1 to 4 were erroneously entered in the relevant r. S. record-of-right. The names of full sisters of the plaintiffs were not incorporated in that record-of-right. Father of the plaintiffs did never put forward any claim to the suit property. The plaintiffs and their full brother chitta Ranjan Chowdhury permitted defendant No. 2 to reside in the house on condition that he would vacate the house of the plaintiffs and their brother on demand. In about 1980 the defendant No. 2 during the absence of the plaintiffs and Chitta Ranjan constructed a structure comprising 4 rooms for his residence with family. The plaintiffs and the other brother protested against the unlawful construction but defendant No. 2 having repented, the plaintiffs and his brother permitted the defendant No. 2 to occupy the said 4 rooms on condition that he would remove the structures whenever they would be required to do so. Those structures are described in schedule 'b-1' of the plaint. The plaintiffs and Chitta Ranjan Chowdhury also permitted the defendant No. 3 to reside in one of the rooms previously used as kitchen and thereafter he made some addition of a temporary nature with asbestos sheet roof for his residence and constructed a temporary Ekchala kitchen. The plaintiffs having objected the defendant No. 3 promised to dismantle and remove the added portions whenever he would be asked to vacate their house and those structures have been described in schedule 'b-2' of the plaint. The plaintiffs and their elder brother permitted their step-mother Hiron Prova chowdhury to reside in the said house out of respect and love for her. Since after the death Chitta Ranjan the defendants and the members of their family have been misbehaving with the plaintiffs and they have been creating nuisance and vitiating the peaceful atmosphere in the house by abusing them and by creating all sorts of inconvenience to them. Despite their asking the defendants to move out elsewhere the defendants are not vacating the rooms in their occupation taking advantage of the wrong entry in the record-of-right. The plaintiffs' bid to get the entry of the record-of-rights corrected was foiled by the Revenue Officer on the ground that the matter involved complicated question of title. The plaintiffs served a notice on 17th February, 1986 on the defendant Nos. 2 to 4 revoking the licence in their favour and requiring them to vacate the house with their family and to demolish and remove the structures constructed by them. The plaintiffs are ready and willing to pay any compensation for removal of the structures as described in Schedule 'b' of the plaint.

(3.) THE defendants contested the suit by filing a written statement denying the material allegations in the plaint. The defence case is that the plaintiffs mother Suniti Bala Chowdhury did never purchase the land in dispute land was settled by Sonaulla Wakf Estate by a Dakhila in favour of the plaintiff No. 1, his full brother Chitta Ranjan Chowdhury and the defendants Nos. 1 to 4 in 1359 B. S. Prior to 1359 B. S. the land was in occupation of Akhil Ranjan chowdhury. The alleged transfer by Chandra Kumari Ram and Ajari Kumari ram in favour of Suniti Bala Chowdhury by the alleged deed of transfer is false, fictitious and without any consideration as those vendors had no right, title or interest in the land. The land was in possession of Akhil Ranjan Chowdhury who was in possession of the same by constructing the structure. Defendant nos. 1 to 4 possessed the disputed land and the structure for more than 30 years in their own right and title denying the right, title and interest of others. They have denied that they had been residing in the same house by virtue of leave and licence granted by the plaintiffs. They have also denied that in or about 1980 the defendant No. 2 during the absence of the plaintiff and Chitta ranjan Chowdhury constructed structures comprising 4 rooms and the plaintiffs and their brother protested against the unlawful construction. The construction of the structures was made by defendant Nos. 1 and 2 long back and only some renovations of the structure were made by other defendants excepting defendant No. 5 sometime in 1973 and their father Akhil Ranjan chowdhury looked after such construction. Defendants have also denied that the plaintiffs and their elder brother permitted defendant No. 3 to reside in one of the rooms and thereafter he made some additions of temporary nature of asbestos roof for his residence and constructed Ekchala Kitchen. The alleged misbehaving of the defendant with the plaintiffs is also denied. Their further case is that even if the title of defendant Nets. 1 to 4 is found to be defective, they have acquired adverse possessory right over the land and structures thereon by using and enjoying them for more than 34 years denying the right, title and interest of the plaintiffs excepting one room in possession of the plaintiff No. 1.