DURGA BANSHI MAJHI & ANR Vs. SAVITRI RAI

JUDGEMENT

(1.) This appeal is directed against the judgement and the decree dated 21st May, 2004 passed by learned Additional District Judge, Midnapore (West) in Title Appeal No. 36/2002 reversing the judgement and decree dated March 26, 2002 passed by learned Civil Judge (Junior Division), 2nd Court, Midnapore in Title Suit No. 24 of 2000. In this Second Appeal this court is called upon to consider the following substantial questions of law : -

(2.) The brief fact leading to the instant case is that the suit property originally belonged to Sk. Golam Md. who constructed a kachha house with tile shed therein and he was survived by two sons namely Sk. Oli Md. and Sk. Zakir Hossain. According to the plaintiff, the said sons of Sk. Golam Md. having inherited the suit property, allotted the same to the defendants/appellants to stay in the said kachha house temporarily as licensee. The defendants had given the assurance to quit and vacate the suit property. Subsequently, they sold the suit property to Kashi Prasad Tripathi by registered deed of sale on 28.04.1983 who in turn transferred the same to Parbati Debi by virtue of a registered deed of sale dated 15.04.1985 and thereafter the said Parbati Debi transferred the same to Sabitri Rai, the present plaintiff by a registered deed of sale dated 18.08.1997. According to the plaintiff/respondent, she took possession of land mentioned in the schedule to the plaint and asserted her exclusive right, title interest and possession by mutating her name in the municipal record and paying rents. Specific case of the plaintiff/respondent is that defendants/appellants are licensee of the suit property and have been paying licence fees @ Rs. 20/- per month to Kashi Prasad Tripathi and the plaintiff also allowed them to possess in the same capacity." Since the defendants attempted to raise a construction in the suit property, the plaintiff raised objections and lodged a complaint before the Executive Magistrate, Kharagpur under Section 144(2) of Cr.P.C. against the defendant No. 1, who was restrained from making any construction over the suit property. Thereafter, the plaintiff/respondent withdrew the permission by a notice dated 07.01.2000 requesting them to quit and vacate the suit property within fifteen days therefrom. plaintiff also claimed a decree of eviction of the defendants/appellants from the suit property.

(3.) The defendant Nos. 1 and 2 have contested the suit before the trial Court by filing a written statement denying all materials particulars made in the plaint and contended inter alia, that the father of the defendant No. 1 Chulhan Dom used to work under Golam Md. As he was loyal and faithful to his master had no house to reside, said Golam Md. orally gifted the suit property to the said Chulhan Dom in the year 1940 and delivered vacant possession in his favour. At the material point of time, the suit property was low land and was full of thorny grasses and bushes, the said Dom constructed a small thatched house with straw shed thereon and started residing therein along with his family. Since the municipal authority found him in possession taxes were realised from him. After death of said Chulhan Dom, the defendants are residing. Accordingly, the defendants/respondents herein prayed for dismissal of the suit.