SURESH CHANDRA GHOSH Vs. RABINDRA NATH BISWAS

JUDGEMENT

(1.) The instant second appeal at the instance of the defendant/appellant is directed against the Judgment and decree dated 19.9.87 passed by the learned Assistant District Judge, Second Court, Hooghly in title appeal No.341 of 1978 whereby the appeal was allowed reversing the Judgment and decree of dismissal dated 18.11.78 passed by the learned Munsif, Second Court, Hooghly in title Suit No.29 of 1977 renumbered as 127 of 1978 and a decree for eviction of the defendant/ appellant was passed in respect of the suit premises. It may be noted that the trial court dismissed the plaintiff /respondent's suit on the ground that the same was barred by limitation. Although the instant second appeal was admitted on the grounds Nos. 13 and 15 urged in the memo of appeal, the leaned counsel for the appellant was permitted to argue the appeal at the time of hearing also on the grounds taken in the memo of appeal being Nos. 1, 3, 4, 8, 9, 10, 11. 17 and 20. The appellant has also challenged the order No. 64 passed by the First Appeal Court under No. 64 dated 23.7.87 allowing the plaintiff/respondent's application under Order 41 Rule 27 CPC. By the said order the plaintiff/respondent was directed to take proper steps for adducing additional evidence before the said court as indicated in the said order. The additional evidence was adduced by the plaintiff/respondent on 11.8.87. One witness was examined and cross-examined and documents were marked exhibits. It may also be noted that the trial court's Judgment and decree were set aside earlier by the First Appeal Court by Its order dated 11.5.81 in title appeal No.341 of 1978 whereby the suit was remitted back to the trial court with a direction to allow the plaintiff to adduce further documentary evidence. This High Court set aside the said order of remand by its order dated 19.11.86 and directed the First Appeal Court to decide the appeal and the application under Order 41 Rule 27 of the Civil Procedure Code, de novo and further directed the Lower Appellant Court to examine and consider all the maferials on record. It appears from the Lawer Appellate Court's record that thereafter the title appeal was heard de novo as per directions of this High Court as noted above and the impugned Judgment and decree was passed.

(2.) Before considering the merits of the instant second appeal it would be helpful to note the admitted and undisputed facts on record:-

(3.) The plaintiff/respondent's case is that Janak continued to stay in the suit premises along with other members of his family till 1967. Sometime in 1967 the said Janak left for Godagrir Char in P.S. Jalangi District Murshidabad leaving the suit property under the care and protection of his neighbour and cousin-brother Santosh Sarkar. At that lime the defendant was living in his father-in-law, house closed to the suit property as the tile shed in which he was living there got damaged he requested Santosh Sarkar to permit him to live in the suit property. The said Santosh Sarkar after obtaining permission from Janak allowed the defendant to live in the suit premises for a few months as a licensee under Janak. The present plaintiff/ respondent thereafter expressed his willingness to Janak to purchase the suit property and accordingly Janak revoked the licence granted in favour of the appellant/defendant and transferred the suit property to the present plaintiff/respondent Rabindra Nath Biswas by a registered deed of sale dated 29.7.75. The defendant/appellant in spite of such revocation continued to live in the suit property without vacating the same. Furthermore, he initiated a Criminal Proceeding under section 144 Cr.PC during the pendency of which there was a talk of settlement in pursuance of which the plaintiff/respondent revoked the licence again and the defendant although agreeing to vacate the suit property on the compromise of the proceeding under section 144 Cr.PC ultimately did not vacate and is till in possession of the disputed structure. Hence the suit. The defendant/ appellant in his written statement has dented the story of licence and the revocation of the same either at the instance of Janak or at the instance of the present plaintiff/respondent. His specific case in the written statement is that he has been living in the suit property as a matter of right since 1960 openly. peacefully and to the knowledge of others in assertion of his title being hostile to the title of all others. In para 17 of the written statement the defendant/appellant has sought to clarify his possession by stating that Janak took a loan of Rs. 2,000/- in 1960 from him for purchasing the suit land and for construction of structures there upon while undertaking to repay the same within a year. But as Janak failed to repay the same he i.e. the present appellant drove him out of the suit property by force and trespassing upon the same got 16(sixteen) annas possession of the property and since 1960 he has been possessing the same. He his also challenged the plaintiff/respondent's Kobala dated 29.7.75 for being a forged and fictitious one on the ground that Janak being driven out by him from the suit premises in 1960 1eft India and went to Pakistan and never returned to India from there. The trial court has disbelieved the plaintiff/respondent's case of licensee against the defendant in respect of the suit premises. It is interesting to note that the trial court at the same time has also rejected the defendant/appelltant's story of acquiring title to the suit property by adverse possession. But the trial court has dismissed the suit for being barred by limitation while finding that the defendant/appellant has been in possession of the suit premises as a trespasser since 1960. According to the trial court the suit having been filed in 1977 it is hopelessly barred by limitation for having not been brought within 12 years from the date of dispossession. The learned First Appeal Court has overruled the above finding of the trial court on limitation and has decreed the suit for eviction holding that the defendant is a licensee in possession of the suit premises since 1967 and that the suit having been filed in 1977 is not barred by limitation. The learned appeal court on consideration of the evidence of record has held as follows:-