RABI SANKAR DUTTA Vs. BIJOY KRISHNA SEVA SAMITY

JUDGEMENT

(1.) A suit for declaration and permanent injunction filed by the appellants and their predecessor-in-interest against the respondents being Title Suit No. 215 of 1995 was dismissed on contest by the learned Civil Judge (Junior Division), 2nd Court at Howrah. The plaintiffs/appellants preferred an appeal being Title Appeal No. 142 of 2005 assailing the judgment and decree passed in Title Suit No. 215 of 1995 before the learned Additional District Judge, 3rd Court at Howrah. The said appeal was also dismissed by the learned Judge in First Appellate Court and judgment and decree passed by the trial court was affirmed.

(2.) The judgment of affirmation passed in Title Appeal No. 142 of 2005 is under challenge in the instant appeal.

(3.) It was the case of the plaintiffs/appellants that one Biswanath Dutta, since deceased was the original owner of 'A ' schedule property. The said property was partitioned by a registered deed of partition dated 19th May, 1967 by and between the said Biswanath Dutta and his brother Bijay Krishna Dutta since deceased and Biswanath Dutta became exclusive owner of holding No.1/1 Kashinath Chatterjee Lane, described in schedule 'A ' of the plaint. Out of the said 'A ' schedule property comprising of holding No. 1/1 Kashinath Chatterjee Lane, an area of 0.0298 acre was acquired by the Howrah Improvement Trust and the remaining portion measuring about 3 Cottahs, 3 Chittaks and 20 sq. ft. of land remained under the ownership and possession of Biswanath Dutta during his lifetime. The said property is described in schedule 'B ' of the plaint. It is claimed by the plaintiffs that the said Biswanth Dutta had been possessing the 'B ' schedule property performing all acts of ownership over the same. Biswanath died on 17th August, 1985 leaving behind his widow and the present appellants as her legal heirs and representatives. They inherited the 'B ' schedule property and used to possess the said property by performing acts of ownership. That on 31st January, 1995, taking advantage of absence of the plaintiffs/appellants, the defendant-club and their men and agents fixed some banners and festoons over the suit property with some ulterior motive to grab the same. Subsequently on 18th August, 1995 the defendant-club and its members forcibly constructed boundary wall over one side of the suit property in spite of the obstruction being raised by them. It is also alleged that though Howrah Improvement Trust had acquired 0.0298 acre of land from 'A ' schedule property, actual physical possession was never taken by it. The plaintiffs on the other hand were all along in possession of 'B ' schedule property. However the defendant No. 1-club with the help of its members and some local young men illegally fixed fencing on the eastern side of 'B ' schedule property by affixing G.I pipes on some bricks built walls. They also fixed four numbers of hoardings for commercial purpose to display advertisement of several business organization. Therefore the plaintiffs had sort for declaration of their title in respect of 'B ' schedule property, mandatory injunction directing defendant No. 1/club including its office bearers, members/men and agents to remove the fencing and hoardings fixed on the 'B ' schedule property and prohibitory injunction restraining the defendant No. 1 and their men and agents from interfering with the peaceful possession of the plaintiffs/appellants over 'B ' schedule property.