JATINDRA NATH MONDAL Vs. HARIMOTI DASSI

JUDGEMENT

(1.) This is a dispute between brother and sister. The brother originally instituted a suit as against the sister in 1967 allegedly terminating the licence of the sister in occupying the portion of the premises of their beloved father . Father, Gostha Bihari Mondal, since deceased in 1941 or 1942 allowed her daughter, respondent herein to remain in the possession of the property with her husband Bepin Chandra Das since accused. Father expired in between 1951 to 1952 survived by widow and the son and daughter as aforesaid. After 1956 (the crucial period for right of inheritance of the property of the famale heir) Bepin, the husband of the sister/daughter of the predeceased, expired. The period of expiry of Bepin is about 1960.

(2.) The suit which has been instituted by the brother for termination of the so- called licence of the sister was dismissed on contest by the Court of first instance from which an appeal was preferred. A remand order was passed by the Court of first appeal at the relevant point of time. From where a Second Appeal was preferred. By an order dated 2-7-1976 in the appeal from appellate decree No. 473 of 1972 the High Court was pleased to observe that the positive case of the sister is that they had raised the disputed structure and was in possession thereof and they acquired title therein by adverse possession. No doubt the lower appellate Court disbelieved such story of the defence. "But I think that the judgment of the lower appellate Court is not a proper judgment inasmuch as it has not taken into consideration the material evidence on record and the pleadings of both the parties. On the other hand, it has proceeded on the footing that during the life time of Goshta Behari Mondal, Bepin Chandra Das came into possession of the disputed room as a licensee and after the death of Goshta Behari Mondal the defendant claimed to have continued their possession in the disputed room adversely."

(3.) In any event, appeal was allowed upon setting aside the order and matter was remitted back to such Court for fresh disposal in accordance with the provision of the law. The first appellate Court framed certain points for the purpose of due consideration. One of such points is "Have the defendants acquired title to the suit property by adverse possession ?" Thereafter it was considered in the following manner.