BANI BASU Vs. SACHINDRA NATH GHOSE

JUDGEMENT

(1.) HEARD the learned Advocates for the respective parties. Facts of the case are briefly as follows: the appellants (Smt. Bani Basu and Ors.) filed title suit No. 2 of 1983 in the court of the learned 5th Assistant District Judge at Alipore, 24-Parganas against the defendants in the said suit including the respondents herein praying inter alia for a decree for permanent injunction restraining the said defendants from interfering with the appellants' possession in the suit property and also restraining the said defendants from making any construction on the suit property or from wasting, damaging or alienating any part of the suit property or from changing the character thereof, a decree for mandatory injunction directing the said defendants to remove themselves from the suit property and also decree for possession. The description of the suit property given in the plaint is as follows:

(2.) THE case of the appellants in the plaint was that their father, Debi prasanna Ghosh, who came from an ancient aristocratic family at Jorabagan calcutta, was until his death on 26. 01. 1976, the owner of 106, B. T. Road, P. S. Baranagar, Calcutta. On the death of the said Debi Prasanna Ghosh, the appellants became the owners of the said property by way of succession. That towards the end of 1960's the respondent No. 1 (Sachindra Nath Ghosh) helped the said Debi Prasanna Ghosh in protecting the said property and with the permission of the said Debi Prasanna Ghosh, the respondent No. 1 started living in a part of the said property which was provided for menials as supervisor of the said property along with the defendant Nos. 2 and 3 in the said suit (whose names subsequently appear to have been expunged from the records ). It has been alleged in the plaint that trouble began towards the end of April, 1976 when the defendants in collusion with each other started making various unauthorized constructions on some vacant land in the suit property without the knowledge and consent of the appellants and the appellants found that the defendants in the said suit were raising a long wall dividing the suit property into two portions which was objected to by the appellants but the appellants were threatened with dire consequences by the defendants in the suit and/or their men and agents. That provisions under section 144 Criminal Procedure code had to be initiated and complaint was also made before the learned magistrate concerned under sections 143, 311 and 506 of the Indian Penal code. The appellants' case was that the defendants in the suit did not have any right to raise any construction or change the nature and character of the suit property or interfere with the peaceful possession of the appellants and that the appellants did not require any further the services of the defendants and the licence was revoked and since the defendants did not remove themselves from the suit property in spite of specific demands being made in that regard, the appellants were compelled to file the said suit.

(3.) THE respondent No. 1 (Sachindra Nath Ghosh) contested the said suit by filing a written statement alleging inter alia that the said Debi Prasanna Ghosh, since deceased, had great love and affection for the respondent No. 1 and that the respondent No. 1 saved the suit property from the onslaughts of refugees and also helped in derequisitioning the suit property. It was the further case of the respondent No. 1 that the respondent No. 1 helped Debi Prasanna Ghosh, since deceased, in the management of the properties at Birbhum and elsewhere and that the said respondent No. 1 was never a durwan or caretaker or supervisor of the suit property. It was the further case of the respondent No. 1 that the said Debi Prasanna Ghosh, out of love and affection for the respondent no. 1 and with the sense of gratitude, proposed to sell the suit property to the respondent No. 1 for a sum of Rs. 1,75,000/- and the said Debi Prasanna Ghosh took Rs. 20,000/- towards the part payment of the consideration on the date of the agreement for sale and the said Debi Prasanna Ghosh made over possession of the suit property to the respondent No. 1 and that it was agreed between the said Debi Prasanna Ghosh and the respondent No. 1 that the respondent No. 1 will live in the suit property and develop the same by erecting new structures thereon for the purpose of letting out and expansion of the respondent No. 1's business. It has been alleged in the said written statement that the said Debi prasanna Ghosh realized Rs. 76,000/- from the tenants for the years 1975 and 1976 which was to be adjusted against the consideration money and that only rs. 41,000/- was still remaining due and that the respondent No. 1 has filed a suit for specific performance of contract being T. S. No. 87 of 1976 before the said learned Court. It was the case of the respondent No. 1 that the respondent no. 1 is in lawful possession of the suit property by virtue of his own right under the said agreement for sale dated 07. 01. 1967.