SAMPA ACHARYYA Vs. MALAY ACHARYYA

JUDGEMENT

(1.) Challenge in this Second Appeal is to the judgment and decree passed by learned Additional District Judge, 7 Court, Barasat, North 24 Parganas, in Title Appeal No. 6 of 2016 on 3/7/2019 affirming thereby the judgment and decree passed by learned Civil Judge, Senior Division, 2 Court, Barasat dismissing the Title Suit No. 69 of 2007.

(2.) To appreciate the appeal in its proper perspective it is expedient to narrate the facts of the case in brief. The Appellant in the Second Appeal, filed a suit for eviction, mesne profit and permanent injunction against her full blood bother Malay Acharyya. It is contended that father of the plaintiff Sri Kiran Chandra Acharyya was allotted the land by the State of West Bengal in Sector-III of Bidhannagar (Salt Lake Town City within District North 24 Parganas). Subsequently, on 26/7/1982 a deed of indenture was executed by the State of West Bengal in favour of Sri Kiran Chandra Acharyya who thereafter, constructed a two storied building over the said land and started residing there. Malay Acharyya, one of the sons of Kiran Chandra Acharyya has also been staying in the first floor of the suit house with his wife and son, with the permission of his father. Subsequently, Sri Kiran Chandra Acharyya decided to transfer the property including his lease hold right in favour of his daughter Smt. Sampa Acharyya and after obtaining permission from the government he transferred the property by executing a deed of gift in favour of his said daughter, the plaintiff/appellant herein. After the property was acquired by plaintiff/appellant, the defendant/respondent, (hereinafter referred to as Plaintiff and Defendant respectively for convenience) who happens to be her brother, approached her seeking permission to continue his stay in the first floor of the 'A ' Schedule Property, depicted as Schedule 'B ' for 6-7 months with an undertaking that he would quit and vacate the first floor of the 'A ' Schedule Property in favour of plaintiff and would move to his new place of abode. As it was from the brother, the plaintiff acceded to such request. However, she started possessing the property after mutating her name by paying rates and taxes to the Municipal Authority. But when the plaintiff Sampa Acharyya requested the defendant to quit and vacate the property, the defendant refused to surrender his possession and challenged the authority of the plaintiff. Hence, the suit.

(3.) The defendant contested the suit by filing written statement denying all material averments made by the plaintiff in her plaint. It is the specific case of the defendant that Kiran Chandra Acharyya did not construct the house, rather he instructed his son, the defendant, to undertake the work of construction of the building and assured him that the property would be given to him in due course of time. His father would execute required documents. Thus on good, the defendant borne the entire cost of the construction and started occupying the property like owner of the same. According to the defendant the deed of gift was never executed by his father. The document is not valid. The defendant further contended that the deed of gift dtd. 15/9/2006 is void, it was never acted upon, it was obtained by practicing fraud upon his father and he prayed for dismissal of the suit.