ANIL KUMAR PAL Vs. CHABI PAL

JUDGEMENT

(1.) This Second Appeal has been preferred challenging the judgment and decree dtd. 21/8/2010 passed by Additional District Judge 4th court Burdwan in T.A. no. 126 of 1989/ 22 of 1989. By the impugned judgment the court below has reversed the judgment and decree dtd. 14/8/1989 passed by learned Assistant District Judge, Burdwan in T.S. No. 21 of 1985/ 24 of 1979.

(2.) The Predecessor-in-interest of the plaintiffs/respondents herein, filed aforesaid T.S. No. 24 of 1979/T.S No. 21 of 1985 for recovery of 'khas' possession against the present appellant/defendant no.1 treating the present appellant to be a licensee under the original deceased plaintiff. In the plaint plaintiff specifically pleaded that suit property originally belonged to one Laxmi Mani Dasi, who during her lifetime bequeathed her property in favour of Partiosh Bala Dasi, who is the mother of the plaintiff, by virtue of a will executed on 8/12/1924 where the husband of Paritosh Bala namely Ratan Chandra Pal was appointed as executor. Thereafter the said will was probated and accordingly mother of the plaintiff, Paritosh Bala became the owner of the suit property. Said Paritosh Bala died on 18/3/1937 and according to plaintiff, he being the son of Paritosh Bala has solely inherited property left by her mother. His further case is that the Rs. recording of the suit property in the name of his father Ratan Chandra Pal is erroneous. Plaintiff's further case is defendant no.1/appellant herein was born due to second marriage of his father Ratan Chandra pal with one Aruna Bala Dasi. Subsequently after the death of the first wife of Ratan namely Paritosh Bala, Ratan Chandra pal as well as present defendant no.1/appellant herein were given a status of licensee, in respect of the suit property under the original plaintiff. Plaintiff has revoked the aforesaid license and as defendant no.1 failed to quit and vacate, inspite of revocation of license, plaintiff filed the aforesaid suit against the defendant no. 1 for his eviction from the suit property.

(3.) The defendant no.1/ appellant herein contested the suit by filing written statement denying the material allegations contained in the plaint. Defendant No. 1 specifically denied that he was begotten out of the alleged second marriage of Ratan Chandra pal but he was begotten out of the first marriage of Ratan Chandra pal with Paritosh Bala and as such after the death of Paritosh Bala, Ratan being the husband of Paritosh and the defendant no.1 being the second son of Paritosh Bala cannot be treated as licensee under the original plaintiff and on the contrary the defendant no.1 /appellant herein is a co-sharer in respect of the suit property and accordingly he prayed for dismissal of the suit.