SUBAL CHANDRA DAS Vs. DHIRENDRA CHANDRA DAS

JUDGEMENT

(1.) THIS is an appeal from an appellate decree and it arises out of a suit for recovery of possession of two rooms in the disputed house in premises no. 103 Malllck Colony, p. S. Baranagore in the district of 24 parganas.

(2.) ONE Swarnamoyee Dasi was a resident of East Pakistan and she came to india as a refugee and lived as a squastter in Mallick Colony. within the area of P. S. Baranagore. She came to India with her eledest son Profulla and the third or the youngest son, Dhirendra who is the plaintiff in the present suit. Her second son Amulya was in East pakistan till he came over to India in 1964. The defendants are the sons an wife of Amulya. The Government of west Bengal through the Secretary, refugee Relief and Rehabilitation Department issued a letter of authorisation to occupy a plot in the Squatters Colony being the disputed plot in favour of Swarnamoyee on certain terms and conditions. Thereafter Swarnamovee who bad funds of her own constructed two pucca rooms on the disputed plot in or about 1963 and lived there with her youngest son, the plaintiff. Her eldest son Profulla similarly got possession of another plot in the same colony. In 1964 Amulya came from East Pakistan and started living in one of the two; ground floor rooms in the disputed plot. In 1967 the plaintiff constructed one room with sp lit bamboo. walls and roof partly of tins and partly of tiles in the disputed plot for use of Amulya's eldest son Subal (defendant no. 1) who got married. On 27. 5. 1968 a deed of gift was according to the plaintiff, duly executed by Swarnamoyee in favour of the plaintiff in respect of the disputed land and the structures thereon after it was read over to her and the deed was properly attested by two witnesses. Thereafter in 1969 the plaintiff constructed three rooms on the first floor of the pucca building in the disputed plot along with the stair case room over the roof. The plaintiff inducted tenants in one room in the ground floor and another room in the first floor and realised rent from them. His name was entered in the municipal assessment register as owner of the disputed house and he alone paid municipal tax for the suit premises. The plain tiff granted license to Amulya to occupy one room in the ground floor of the building and the tin cum tiled roof room. Amulya occupied those' two rooms which are the subject matter of the present suit during his life time fill his death which took place on 18. 3. 1973. Before that Swarnamoyee had died in January, 1971. The aforesaid facts have been disclosed in the evidence on record and both the courts below have concurrently found that the deed of gift dated 27. 5. 1968' (Ext. 7) was duly executed by swarnamovee and attested by two witnesses (P. Ws. 2 and 9) and that it was read over and explained to the executant who was an illiterate person before the execution. The courts below have negatived the defence case that the disputed plot was taken by Swarnamoyee as benamdar of her two sons Dhirendra (plaintiff) and Amulya;'that the structures were constructed with their joint funds; that Amulya was in possession of the disputed rooms as cosharer and that after Amulya's death, the defendants have been in possession thereof as Amulya's heirs.

(3.) THE trial court dismissed the suit on the ground that the plaintiff has failed to prove the grant of license to the defendants to occupy the disputed rooms and that the suit property has not been properly described in (he plaint for the purpose of identification. The first appellate court has reversed the decision of the court of first instance, on the findings that after the death of Amulya the plaintiff granted fresh license to the defendants to occupy the disputed rooms, which was terminated before the suit and that the plaintiff, is entitled to recover possession of the disputed rooms from the defendants who are trespassers therein. The first appellate court has also found that the description of the disputed rooms in. the plaint is quite sufficient for identifying them and the defendants have not been in any way misled by such description.