BINA BASAK Vs. BIPUL KANTI BASAK

JUDGEMENT

(1.) THIS appeal arose out of judgment and decree passed by the learned Additional District Judge, 1st Court, Siliguri in O.C. Appeal No. 19(s) of 1999 reversing the judgment and decree dated 16.9.1999 and 23.9.1999 respectively passed by the learned Civil Judge,(Sr. Div.), Siliguri in O.C. Suit No. 16 of 1983.

(2.) IN the background of this appeal the fact in a nutshell is that O.C. No. 16 of 1983 was filed for declaration of title, recovery of possession injunction and other consequential reliefs by the plaintiff one Smt. Hemaprova Basak w/o. late Binod Behari Basak against Bimal Kanti Basak and Ors.

(3.) SHE claimed that he is the absolute owner of the Schedule 'A' property and is in possession thereof as described better in the Schedule appended to the plaint alongwith the building and structures standing thereon. The plaintiff was allotted the suit land by the Relief and Rehabilitation Department of Govt. of W.B. vide Memo No. 2231/RRG dated 5.12.53 by the Deputy Commissioner, Darjeeling. She took possession of the suit land from the Govt. of W. B. and submitted the building plan to the Municipality for construction of the building thereon. The Municipality approved the plan on 4.8.54 and the plaintiff constructed the building after obtaining House Building loan. Thereafter, the plaintiff submitted a revised plan in 1957 and after the plan was approved, the plaintiff constructed second phase of the structure and his name was duly recorded in the Municipal Corporation, Siliguri as the exclusive owner. In 1975, the Govt. of W.B. executed a lease deed dated 1.11.75 for a period of 99 years in favour of the plaintiff in confirmation of the allotment already made and the said lease deed was registered on 3.11.75. The defendants are the brothers of the plaintiff's husband Binod Behari Basak and they had no independent accommodation and accordingly they were given permission by the plaintiff to reside on a portion of the said property. The defendants were also maintained by the plaintiff's husband and the defendant continued to be permissive possessor of the 'B' schedule property under the plaintiff. In the meantime, the plaintiff's family grew up and the plaintiff required further accommodation to accommodate her family. In 1983, she requested the defendants to vacate the property but they did not.