PARIMAL SEN Vs. PRAFULLA KUMAR SEN

JUDGEMENT

(1.) Defendants-appellants have challenged the judgment and decree of the First Additional Subordinate Judge, Cuttack, in Title Appeal No. 51 of 1975 who by the impugned judgment has confirmed the judgment and decree passed by the Munsif, First Court, Cuttack, in Title Suit No. 34 of 1971.

(2.) Plaintiff Prafulla Kumar Sen filed the suit for eviction of the defendants with respect to two rooms and for realisation of arrears of licence fee amounting to Rs. 944/-. Plaintiff averred that he and Pramath Nath, the husband of defendant No. 1 and the father of defendants 2 to 5 were two brothers. Pramath sold the suit property to the plaintiff by a registered sale deed dt. 3-8-1945. Prafulla filed Title Suit No. 59 of 1963 for a declaration that the said sale deed was genuine, for consideration and on that basis he had acquired title and possession and further he had prayed for confirmation of possession and for restraining Pramath Nath from making any construction over the suit land. The suit was decreed on a finding that the sale deed dt. 3-8-1945 was genuine and Prafulla's possession was confirmed excluding the two rooms which were in occupation of Pramath Nath. On appeal by Prafulla, it was held that Prafulla's right over the entire suit land including the two rooms occupied by Pramath Nath must be declared. It was further held that Pramath Nath was a licensee with respect to those two rooms. During the pendency of that appeal, Pramath Nath having died, the present defendants were substituted and their second appeal to this Court was dismissed. The defendants, therefore, continued to occupy the rooms as licensees. Plaintiff, therefore, filed the present suit for realisation of license fee at Rs. 30/- per month and also for eviction of the defendants.

(3.) The defendants in their written statement denied the assertion that they were licensees under the plaintiff. They also challenged the validity of the sale deed executed by Pramath Nath. They further pleaded that O.2, R.2 of the Civil P.C. would be a bar and the present suit was also hit by the principles of constructive res judicata. -