AMULYA RATAN MUKHERJEE Vs. KALI PADA TAH

JUDGEMENT

(1.) This appeal is by some of the defendants against the decision of the 1st Additional Court of the Subordinate Judge, Burdwan in Title Appeal No. 37 of 1960 affirming the judgment and decree passed by the Court of the Munsif at Kalna in Title Suit No. 31 of 1958 in favour of the plaintiff and against the defendants.

(2.) In short, the plaint allegation is that on .06 acre of land appertaining to C. S. plot No. 850 under khatian No. 342 in Mouza Madhupur, the plaintiff Kalipada Tan constructed two shop rooms which are the subject-matter of the suit. The landlords in respect of the land in C. S. plot No. 850 were Manmatha Chat-terjee and others. Subsequently the defendant No. 25 purchased the interest of the landlords and became the landlord of the plaintiff. The plaintiff had his own shops in the two rooms on the land in plot No. 850 upto 1340 B. S. Later on he let out the suit rooms to one Kalipada Mukherjee who carried on his sweetmeat shop there upto Chaitra, 1354 B. S. Thereafter, Kalipada left the rooms and plaintiff took possession of the same and let out the eastern room to the defendant No. 1 in Aswar, 1355 B. S at a monthly rental of Annas 8 and in Aswin 1355 B. S. he let out the western room to the defendant No. 2 at the same monthly rental of Annas 8, According to the plaint, they occupied the rooms as tenants and paid rents to the plaintiff. Subsequently they stopped paying rents in collusion with each other. The allegation is that in conspiracy with defendants Nos. 3 to 25, the defendants Nos. 1 and 2 set up a false claim that they were tenants under the said defendants Nos. 3 to 24. The plaintiff, therefore, determined the tenancy of the defendants Nos. 1 and 2 by a notice to quit which was refused. Thereafter, the present action for eviction of the defendants Nos. 1 and 2 and for realisation of arrears of rent was started. It has been alleged by the plaintiff that the defendants Nos. 1 and 2 fraudulently got the current revisional settlement records in their favour and that the same are incorrect.

(3.) This suit was contested by all the defendants and their defence is more or less the same. The defendants' case is that the defendant No. 25 purchased the Mahal including the suit land and obtained possession thereof. The suit land was lying fallow and covered with shrubs. The plaintiff had already abandoned his former tenancy and the defendant No. 25 entered into the suit land in 1344 B. S. Subsequently, he settled l/3rd share of the Mahal including the suit property to defendants Nos. 15 to 19 and 21 by a registered deed dated 5th of Chaitra, 1350 B. S. and that 2/3rd share of the Mahal also including the suit property to defendants Nos. 3 to 5 and 8 to 13 by another registered deed of the same date. The defendants' case further is that the defendants Nos. 3 to 24 possessed the suit property by virtue of the settlement and they settled a part of the lands in the north-western portion of the suit property with defendant No. 2 in Aswin, 1353 B. S. at an annual rental of Rs. 4 and another portion lying to the contiguous north with defendants Nos. 1 and 2 in Baisak, 1353 B. S. at an annual rental of Rs. 2, Annas 8. Thereafter, the defendants Nos. 1 and 2 raised one room each on the land settled at their own costs and they had been running their shops in their own rooms thus constructed. It has been further stated that to the south of the rooms built by the defendants Nos. 1 and 2, the defendant No. 25 raised a dochala about four years back from the filing of the written statement for accommodating some Santal labourers. It is stated that defendants Nos. 3 to 24 are in khas possession of the suit property not settled with the defendants Nos. 1 and 2. The defence allegation is that the plaintiff's shop was finally closed in 1336 B. S., and that his room fell down within 3 or 4 months of the closure of the shop and that since then the suit land had been lying fallow.