MAHMUD @ MAHUD ALAM MOLLA Vs. NASIRUDDIN MOLLA

JUDGEMENT

(1.) The concurrent findings of facts are sought to be challenged in this revisional application by one of the defendants in a suit for recovery of possession upon revocation of license. It would appear from the ex parte decree passed in Title Suit No. 126 of 2009 that the said suit was instituted by the plaintiff / opposite party claiming himself to be the owner on the basis of a registered deed of sale dated 22nd November, 2006. It is alleged that the petitioner being the defendant no. 1 was acquainted with the plaintiff / opposite party and requested for a temporary accommodation in the subject property for a period of three years. The permission to occupy was granted to the petitioner but he failed and neglected to hand over the possession after the expiration of the aforesaid period. It is further alleged that the petitioner has given possession of the suit property to the other defendants and is collecting rent from them. The license was subsequently revoked but despite the same, the petitioner failed and neglected to vacate and hand over the suit property. The said suit was decreed ex parte on 14th January, 2010 with the categorical finding that the summons were served on 16.09.2009 as the acknowledgment due card returned with the postal remark "refused".

(2.) The petitioner thereafter filed an application under Order IX Rule 13 of the Code of Civil Procedure, which gave rise to registration of Miscellaneous Case No. 19 of 2010 before the learned Civil Judge (Junior Division) 2nd Court, Howrah for setting aside the said ex parte decree alleging that the summons were never served upon him. It is alleged in the said application that the suit property originally belonged to one Eekatannessa who during her lifetime transferred the same to her grandson namely Golam Naksaben Molla by executing a deed of gift. The said donnee after independence is mostly residing in Bangladesh and subsequently bequeathed the said property in favour of his nephew, Nurul Alam Molla by executing a wasiyatnama dated 006.1976.

(3.) After the execution of the said wasiyatnama the Golam Naksaben Molla left India forever and started living in Bangladesh where he died long before 2006. It is, thus alleged that the father of the petitioner became the absolute owner of the suit property and upon his death, it devolved upon his sons and daughters and therefore the petitioner is one of the co-owners in respect thereof.