DEWIJENDRA LAL ROY Vs. DIPTA RANI CHOWDHURY

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by Sri M. K. Chowdhury, the Additional District Judge, 3rd Court, Howrah in Title Appeal No. 118 of 2001 reversing thereby the judgment and decree passed by Smt. Manjusri Mondal, learned Civil Judge, 6th Court (Jr. Division) Howrah in T. S. No. 147 of 1999. The suit has been instituted for declaration that the plaintiff is an occupier of the suit property and for permanent injunction restraining the defendant from creating any disturbance in the peaceful possession of the suit property. The case of the plaintiff/appellant, in short, is that the defendant is the owner of a property measuring more or less 5 cottahs of land by registered sale deed of the year 1976. The plaintiff is the brother of the defendant and the defendant is a non-registered Medical Practitioner. After purchasing the suit property the defendant gave consent to the plaintiff for construction of the pucca structure over the suit property. Accordingly, the plaintiff constructed a pucca building with tile shed surrounded by boundary wall. The plaintiff has been possessing the said property for residential purpose along with the members of his family since 1976. The plaintiffs name has been recorded in the Voters' List and also in the Ration Card. The defendant with the help of some promoters has been trying to demolish the said construction of the plaintiff without giving any notice or information to the plaintiff. The plaintiff is willing to purchase the property from the defendant at the market value. But, the defendant is trying to transfer the same without any notice or information to the plaintiff. The plaintiff filed application under Sections 144(2)/107 of the Code of the Criminal Procedure before the learned Executive Magistrate. The plaintiff has been enjoying the said premises as occupier and using the same only for residential purpose. Under the circumstances, the plaintiff instituted the suit before the learned Trial Court for a declaration that he is the occupier in respect of the residential premises of the property situated at Mouza - Santragachi, J. L. No. 4, Khatian No. 288 Dag No. 2 under Howrah Municipal Corporation in the Ward No. 47 measuring more or less 5 cottahs of land with building thereon surrounded by boundary wall under the defendant and for permanent injunction restraining the defendant from creating any disturbance in the peaceful possession of the plaintiff along with the members of his family.

(2.) The case of the defendant /respondent on the other hand is that the allegation of giving permission by the defendant to the plaintiff for construction of the house is false. The defendant is the absolute owner of the suit property by purchasing the same from the then owner Narayan Chandra Dutta by virtue of a Sale Deed dated 15.02.1976. Thereafter, the defendant also purchased the other part of the said property measuring more or less 2 cottahs of land and after purchasing the said property the defendant has been enjoying the said property and made construction thereon. The defendant mutated her name in the Howrah Municipal Corporation and has been paying the tax thereof in her name. As per request of the plaintiff the defendant permitted the plaintiff to stay in the said building as caretaker and in fact the plaintiff has no right, title and interest in any portion of the property in question. The plaintiff is not entitled to get any equitable right and or injunction against the defendant in respect of the suit property.

(3.) In this appeal the following substantial questions of law were formulated at the time of the admission of the appeal : -