FULMONI BARIK Vs. SISIR KUMAR MONDAL

JUDGEMENT

(1.) The instant Second Appeal was filed against the appellate judgement and decree dtd. 30/06/2008, passed by the Learned Additional District Judge, 3rd Court, Hoogly in Title Appeal No.74 of 2004, reversing the judgment and decree of the Trial Court dtd. 12/03/2004.

(2.) The sum and substance of the plaint case was that the Plaintiffs jointly purchased a plot of land admeasuring 2 cottahs 20 sq. ft. along with structures standing thereon (suit property) on 17/02/1992 by a registered deed of conveyance. Prior to purchase, the Defendant No.1 was in occupation of the same as caretaker. On the date of execution of the deed of conveyance, the proforma Defendant No.2 cancelled the license granted to the Defendant No.1 and asked to handover the possession. On request, a fresh leave and license was granted to the Defendant No.1 by the Plaintiffs. On or about 06/10/1994 the Plaintiffs requested the Defendant No.1 to quit and vacate the suit property but they requested for extension of license for another period of six months to which the Plaintiffs agreed. Again on 21/06/1995, the Plaintiffs requested the Defendant No.1 to vacate the suit property but the Defendant No.1 denied. On being constrained, the Plaintiffs instituted the original suit for recovery of possession along with other reliefs.

(3.) The Defendant No.1 contested the suit by filling written statement denying all the allegations. The Defendant No.1 denied that he was a caretaker under the Defendant No.2. It was denied that on verbal request, the Plaintiffs allowed the Defendant No.1 to continue possession. The positive case of the Defendant No.1 was that he was an "Adivasi" and had been residing in the suit property by constructing two tile shaded rooms with brick built walls; the Defendant No.1 had also been enjoying the usufructs of the land and fruit bearing trees since 1963. The Defendant No.2 came on 01/01/1970 and asked him to vacate but not only he refused to do that but ousted the Defendant No.2 from the suit property. The Defendant No.1 had been in possession of the suit property forcefully, continually with full knowledge of the Defendant No.2 by making construction therein. In other words, the Defendant No.1 raised the defense of adverse possession to the claim of the Plaintiffs.