NIRMALENDU KAR Vs. KAMALABALA NASKAR

JUDGEMENT

(1.) This second appeal arises out of a suit for declaration and recovery of khas possession and for permanent injunction in respect of suit premises. The case in brief as has been made out by the plaintiff is as follows : The plaintiff has been the owner of suit premises measuring 2 kottah 7 chhatak 36 sqft. of land at Premises No. 15, Selimpore Road, P. S. Kasba since 14/02/1968, the date on which he purchased the said property by a registered deed of conveyance from the vendor Smt. Bimala Bala Dassi and Ors. After the purchase the plaintiff was in exclusive possession and enjoyment in the suit property. He erected the compound wall and 4 (four) small kuchcha huts on the suit property and the remaining portion remained vacant. The defendant No. 1 who is a widow and is the mother of the defendant Nos. 2 to 4 were allowed by the plaintiff towards the end of the year 1970 to use and occupy the hut mentioned in schedule 'B' to the plaint following the request by the defendant No. 1 for temporary shelter in one of the kuchcha huts on the suit land. The defendant No. 1 used to work as a domestic helper in the Dhakuria locality. She assured that with the children she would work as caretaker and out of compassion the plaintiff. Allowed them to stay in the hut as licensee. The plaintiff retained his possession of the other portion of the premises. In course of time the defendant Nos. 2 to 4 became major and the plaintiff requested the defendant No. 1 to vacate the suit property with the defendant Nos. 2 to 4 as he intended to construct a building on the suit premises. Initially, the defendants prayed for some time to vacate the suit property. The plaintiff allowed time to the defendants to arrange for some other alternative accommodation. Suddenly on 15.07.1980 the defendants tried to extent the kuchcha structure on the East of the existing structure forcibly but failed due to timely intervention by the plaintiff. The plaintiff thereafter revoked the licence and repeatedly requested the defendants to quit and vacate the suit premises but without any effect. The defendants have no right, title or interest in the suit property and they are liable to be evicted as they are interfering with the peaceful possession of the plaintiff. The defendants have also interfered with the plaintiffs' possession of the suit premises by trying to extend the kuchcha structure which was in their occupation as licensees, and hence this suit for declaration of title along with prayers for permanent injunction and recovery of possession.

(2.) The original defendants have been contesting the suit by filing written statement. It is stated by the defendants that the husband of the defendant No. 1 and the father of the defendant Nos. 2 to 4, Chunilal Naskar took settlement of a portion of the land measuring about 1 and kottahs from Ramlal Mondal and constructed 2 kuchcha rooms there and continued to live there with his wife and children from 1333 B. S. till his death in 1364 B. S. On the death of Chunilal Naskar the defendant No. 1 with her children, defendant Nos. 2 to 4 have been living in the self-same rooms on payment of rent for the land and not as licensees as alleged by the plaintiff. It is stated that Maya Naskar, the daughter No. 1 also lived with her till her marriage which took place 5 years before 25/05/1983, the date on which W. S. was filed. It is also alleged that some other kuchcha huts were constructed by some other persons. All other material allegations in the plaint have been denied.

(3.) The following issues were recasted at the time to trial :