RADHA GOPAL PAUL Vs. SUSANTA PAUL AND ORS.

JUDGEMENT

(1.) This second appeal is at the instance of defendant No. 1 in a suit for eviction of an alleged license and is directed against the judgment and decree dated Sept. 7, 1990 passed by the learned Assistant District Judge, Sealdah in Title Appeal No. 310 of 1998 thereby reversing those dated May 20, 1998 passed by the learned Munsif, Additional Court, Sealdah in Title Suit No. 97 of 1984.

(2.) The respondent No. 1 filled the aforesaid suit for eviction of the appellant from the suit property on the ground that the suit property originally belonged to his father and two uncles jointly. The father before his death by making a gift dated Dec. 27, 1974 transferred and conveyed his undivided ⅓rd share to the plaintiff. The defendant No. 6 is the only living uncle of the plaintiff/respondent No. 1 who has ⅓rd share in the suit property. So far property. So far the other uncle is concerned he died on March 6, 1975 leaving proforma defendant Nos. 2 to 5 as his heirs and legal representatives. Thus, all the other co-shares have been made proforma defendant in the suit. the defendant No. 1 is none other than the brother of the plaintiff himself. It appears from the record that after entering apperance in the said suit defendant No. 1 filled a written statement on Feb. 4, 1977 thereby admitting that the suit property was owned by a Muslim gentleman and the father of the parties and two uncles viz. Harendra Lal Paul and Parindra Lal Paul exchanged their joint property of Docca with the present suit premises of the said Muslim gentleman. In the said written statement it was further admitted that latter on the three brothers established their title by a decleration of Civil Court against the said owner and mutted names in the Municipality and jointly lived in the premises. By the said written statement the appellant/defendant No. 1 challenged the deed of gift executed by the father in favour of plaintiff.

(3.) Subsequently on March 2, 1977 the defendant No. 1 filled an application for cancellation of the previous written statement and f lle a fresh written statement. The learned Trial Judge allowed the said application thereby cancelling the previous written statement filled by the defendant No. 1 and accepted the fresh written statement. Against the aforesaid order accepting the fresh written statement, the plaintiff preferred a revisional application before this Court on the allegation that the learned Trial Judge before service of the original written statement upon the learned advocate for the plaintiff had allowed such application. Ultilately the said revisional application was allowed and the learned Trial Judge was directed to hear out the application for acceptance of the second written statement after giving opportunity of hearing to the learned advocate for the plaintiff. It further appears that subsequently on contested hearing the learned Trial Judge allowed such application thereby accepting the second written statement filled by the appellant and totally cancelling the previous written statement filled by the appellant.