SUKESH CHANDRA JATUA Vs. PRAFULLA KUMAR JATUA

JUDGEMENT

(1.) BEING aggrieved by and dissatisfied with the judgment and decree dated 30th June, 1992 passed in Title Appeal No. 303 of 1990 by learned Additional District Judge, 8th Court, Alipore reversing the judgment and decree dated 30th April, 1990 passed in Title Suit No. 400 of 1987 by learned Munsif , 3rd Court, Diamond Harbour this appeal has been preferred . Factual matrix of the plaintiff's case is that one Jogesh Chandra Mukhopadhyay was the original owner of the suit land measuring 1.40 acres and half cent appertaining to Khatian No. 52, Mouza -Madhavpur under P.S. Mandirbazar within the district 24 Parganas. He filed a rent suit being Case No. 871 of 1946 against his subjects before the Court of 3rd Munsif , Diamond Harbour and in the execution of the decree being Rent Execution No. 331 of 1947 the suit land were put to auction sale on 11 -7 -1947. The Original plaintiff Sukesh Chandra Jatua purchased the said land and got possession of the same through Court on 8 -9 -1948. In the rent execution case Padmamani Dashi and Upendra Nath Jatua, father of Sukesh were the judgment -debtors. Padmamani filed a suit to avoid the auction and the plaintiff also filed another suit against her. Both the suits were settled following a solenama in which the auction purchase of the plaintiff and his title and possession were confirmed. Original plaintiff, Sukesh Chandra Jatua subsequently constructed three rooms in Plot No. 255 and started a tile factory. Thereafter at the request of defendant No. 4 Prafulla Kumar Jatua the possession of the suit land and the said structure was handed over to him in Agrahan 1355 B.S. to run the tile factory by way of permissive settlement. But the defendant No. 4 closed the said tile factory in Chaitra 1356 B.S. The plaintiff took the khas possession of the suit land along with the structure and continued the factory for preparation of tile. He has never settled the suit land to defendant No. 4 on a fixed rent and never realised any rent from him. Defendant No. 4 dispossessed him from half decimal of land out of Plot No. 255 on second Pous, 1383 B.S. by constructing a structure made of 'chita bera'. Initially the plaintiff brought the suit against defendant nos. 1,2 and 3 alleging that they forcibly caught fishes from his tank and taken away other valuable fruits from the fruit bearing trees standing on the suit land causing a loss of Rs. 990/ - .

(2.) BUT subsequently he gave up his claim in that regard and after impleading defendant No. 4 he took out a case for recovery of possession in respect of two decimals of land and for confirmation of his possession in respect of the rest suit lands as well as declaration of title in respect of entire suit land comprising an area of 1.41 acres.

(3.) ORIGINAL defendant No. 1 by filing written statement supported the possession of defendant No. 4 in the suit property and has stated that he is an unnecessary party in the suit. Defendant No. 4 contested the suit by filing written statement wherein he has stated that although the plaintiff acquired title and possession in the suit property by virtue of auction purchase but he gave oral settlement of the entire suit land to him at an annual jama of Rs. 8/ - and annas 5 sometime in Agrahan 1355 B.S. Thereafter defendant No. 4 started a tile factory on the suit property and continued the same for 6/7 years. He closed his factory due to loss and converted the rooms used in tile factory for habitation. He started living there with his family and possessing the rest land by cultivation of vegetables and enjoying fruits of fruit bearing trees. He has disputed the story of dispossession from half decimal of the land during the pendency of the suit as claimed by the plaintiff. The plaintiff has admitted the fact of settlement of the entire suit land to the defendant No. 4 by him by filing written statement in T.S. No. 456 of 1949 in the Court of Munsif, 1st Court, Diamond Harbour.