KANAILAL MONDAL Vs. BISHU CHOWDHURY

JUDGEMENT

(1.) -The defendants being aggrieved by and dissatisfied with the judgment and decree dated 21st February and 3rd March, 1975 respectively passed by the learned District Judge, Malda in O.C. Appeal No. 19/74 affirming the judgment and decree dated 30th March and 26th March, 1974 passed by the Munsif, 2nd Court, Malda have preferred the instant appeal. The facts of the case as set out in the judgments passed by the courts below briefly stated as follows:-

(2.) The father of the respondents (hereinafter be referred to as plaintiff) Narendranath Chowdhury took settlement of the suit land at an annual rental of Rs. 2/- from the Zamindar Abut Hayat Khan Chowdhury and others, and erected structures on the suit land, morefully described in the schedule attached to the plaint. From then on, the plaintiffs father Narendranath Chowdhury started living in the suit house. He executed a registered a Kabuliyat in favour of the landlord on 27th Agrahayan, 1361 B.S. The erstwhile landlord filed a title suit in T.S. 199/59 in the Court of the 1st Munsif, Malda against Narendranath Chowdhury for eviction from the suit premises against Narendra. But the said suit, however, was dismissed on contest. Being aggrieved by the judgment and decree passed by the Trial Court the landlord filed an appeal but the appellate court had also affirmed the findings of the Trial Judge. It may be noted here that Narendranath Chowdhury continued to reside in the suit house as before till he was arrested being falsely implicated in a police case on 2nd Kartick 1370 B.S. and unfortunately died in Jail hajat on 9th Agrahayan, 1370 B.S. The plaintiff who are the sons of Naren were then minors used to reside at their maternal uncle's house. After the demise of their father Narendranath Chowdhury when they came to reside in the suit house on 2nd Agrahayan, 1370 B.S. found that the appellants (hereinafter referred to as defendants 1 and 2) had been living there as trespassers. The plaintiffs further case is that the second wife of Narendranath, namely, Sujal Rani who was their step mother had executed a deed of gift by surrendering her 1/3rd share in the suit properties in favour of the plaintiffs on II Baisak 1373 B.S. The plaintiffs, however, made repeated demand to vacate the suit house but, when it did not evoke any response. They were obliged to bring the present suit for declaration of their title and for recovery of possession.

(3.) Both the defendants flied two separate written statements, inter alia, alleging that the defendant No.2 Sakhi Mondalini who is the mother of the defendant No.l Kanalial Mondal took the settlement from the landlords Abul Hayat Khan and others on 2nd Baisak 1340 B.S. After the settlement made by the land-holders, the defendant No.2 raised structure upon the suit land and started to reside therein. The defendant No.2 was dealing with business of pulses and used to stay al Miradal Chandipur on account of her business. Thus, she had let-out the suit house to Narendra Chowdhury at a monthly rental of Rs. 6/-. It was agreed by and between them that the tenant should pay the Municipal taxes over and above the monthly rental. After it was let out to Narendra, he paid not only rent to the defendant No.2 and also on some occasion paid taxes to the Municipality. Taking advantage of the temporary absence of defendant No.2, he managed to record his name in the R.S. record of right in respect of suit properties. The defendant No.2 when came to know about such surreptitious entry he brought a suit O.C. 277 of 1965 in the Court of 1st Munsif, Malda and obtained a decree in her favour. The stand taken by the defendants was that the plaintiffs father Narendranath Chowdhury by creating an unilateral, forged and fictitious Kabuliyat got his name recorded in the R.S. record of right. Therefore, the R.S. record of right standing in the name of Narendranath was not true, valid and binding upon the defendants. It was, further, stated that Narendranath after having been transferred from Malda to Jalalpur surrendered possession of suit house in favour of the defendants. Thus, the defendants are not the trespassers who, have, on the other hand, acquired an indefeasible right over the suit properties. The plaintiffs suit was also resisted on account of improper representation by their maternal uncle and it was, inter alia, pleaded that the plaintiffs could not have brought the suit since they are minor and who are not validly represented through their maternal uncle. The suit was, however, decreed on contest. Therefore, the defendants preferred an appeal and the appellant court after having disagreed with the observations of the Trial Court set aside the findings and remitted the matter for fresh trial to the learned Trial Court. After remand the Trial Judge also on appraisal of the evidence of the parties again decreed the suit, the Trial Court held that the plaintiffs predecessor namely Narendranath had valid title to the suit premises. Though by unilateral execution of Kabuliyat no title could accrue to Narendra but there being several other documents of contemporaneous period which could unequivocally establish the right of the plaintiffs predecessor. The trial court also recorded a finding that the Zamindar who allegedly delivered the land in favour of defendants, he himself filed a suit in T.S. 199/ 59 which was dismissed. He also preferred an appeal against the said Judgment and decree which was equally dismissed by the appellate court, therefore, the landlord being conscious about the possession of Narendranath after having been defeated in T.S. 199/59 could not have laid a claim against his successor through the defendants. In such situation, neither the defendant No. 2 nor any other raiyat representing the interest of the Zamindar could evict the plaintiffs ancestor Narendranath from the suit premises vis-a-vis the plaintiffs. Therefore, the plaintiffs having acquired possessory right over the suit properties were entitled to a decree of possession. The plaintiffs being minor at the time of filing of the suit could be represented through their guardian i.e. their material. uncle. The learned trial Judge has also disbelieved the plea of the defendant No. 2 regarding her claim of letting of the house to Narendranath. The exparte decree said to have been obtained against the State of West Bengal could not bind Narendranath inasmuch as he was not a party to the said suit and the decree was obtained on a false representation that Narendranath had no sons or any heirs. The trial court has also disbelieved the plea of the defendants that the defendant No. 2 had constructed the suit house. With this observation the learned trial court has however, decreed the suit. The appellate court also upheld the findings of the learned trial court Judge and was led to give findings that Narendranath acquired a valid possessory right over the suit properties after whose demise it devolved up on his children. The learned appellate court on the basis of the R.S. record of right. Municipal receipt and also the permission for construction of pucca house held at least from 1955 the plaintiff and their predecessor were in possession of the suit premises. The defendants having committed trespass in the year 1963 have no right to continue in possession and therefore they are liable to be evicted from the suit premises. Taking the over all situation into consideration and also on close scrutiny of the evidence disbelieved the plea of the defendants that they were in possession anterior in time than Narendranath. With these observations, the appeal was dismissed.