MONOMOHAN SAHA Vs. USHARANI GHOSH

JUDGEMENT

(1.) This suit filed at the instance of a transferee purchaser of an undivided half share in premises No. 23, Krishna Ram Bose Street, Calcutta is for possession and alternatively for partition of the suit premises. In the plaint it is inter alia alleged that by a conveyance dated Aug. 1, 1963, the plaintiff purchased the half share of one Narayan Krishna Ghosh in the suit premises. It is alleged that the said Narayan Krishna Ghose, delivered possession of the portion in his occupation to the plaintiff and the plaintiff let out the same to the said Narayan Krishna Ghose at a rent of Rs. 50/- per month. Inasmuch as the said Narayan Krishna Ghose failed and neglected to pay rent, a suit was caused to be instituted against him and the plaintiff recovered possession from him in execution of the decree for possession in his favour. It is alleged that thereafter the defendants caused obstruction and interference with the plaintiff's use and enjoyment of the property and in or about Aug. 1969, dispossessed the plaintiff therefrom.

(2.) Realising difficulties in the way of a prayer for possession by a stranger purchaser, learned Advocate for the plaintiff has mainly urged his claim for partition. It is not disputed that originally two brothers Benoy Krishna Chose and Dhirendra Krishna Chose were the joint owners of the said property and the said Narayan Krishna Ghose since deceased having a half share therein is the only son of Benoy Krishna Ghose while the defendants Nos. 1 to 5 are the widow, sons and daughter of Dhirendra Krishna Ghose. The defendant No. 6, Sunil Krishna Bose having no interest in the suit premises. It is also not challenged that the premises is a dwelling house and the plaintiff an outsider to the family. Inasmuch as the material facts of this case are not hi dispute it is not relevant to record the various allegations in the pleadings which have been mainly averred for the purpose of claiming possession. Suffice it to say that in the written statement filed by the defendants Nos. 1, 2 and 3 it was inter alia not admitted that Narayan sold his half share in the said premises to the plaintiff and the plaintiff's claim for possession was resisted. It was specifically inter alia averred therein that the defendant Nos. 1 to 4 are Jointly the owners of a moiety share in the premises and in any event entitled to claim benefit under Section 4 of the Partition Act. 1893. In this background, the only issues settled for determination are:-- ISSUES

(3.) The plaintiff offered himself for examination and, inter alia deposed that by a Deed of Conveyance dated Aug. 1, 1963 which was tendered as Ext. A, he purchased half share of Narayan Krishna Ghose since deceased, in the suit premises. The plaintiff states that after purchase of the said share he obtained possession of the portion occupied by the vendor in the suit premises and got his name mutated in the records of the Corporation of Calcutta. In cross-examination, he admits that Dhirendra Krishna Ghose, the father of the defendants Nos. 2 to 5 and Bijoy Krishna Ghose, father of Narayan Krishna Ghose were brothers and jointly owned the suit premises. It was also admitted that the defendants Nos. 1 to 5 are in occupation of the property and that prior to plaintiff's purchase in 1963, Narayan Ghose, since deceased, was in occupation of a portion of the property which had not been partitioned and which is the dwelling house of the Ghose-defendants The plaintiff did not call any other witnesses.