AMULYA CHANDRA BANERJEE (DEAD) AND AFTER HIM SARAJUBALA DIBYA AND ORS. Vs. BISESWAR MUKHERJEE (DEAD) AND AFTER HIM SMT. SUBALA MUKHERJEE AND ORS.

JUDGEMENT

(1.) THE Appellant being unsuccessful in both the courts below has filed this Second Appeal challenging the decision of dismissal of his suit.

(2.) THE gist of the case made out in the plaint was that late Baidyanath Banerjee, father of the Plaintiff, was occupancy tenant in respect of 20.75 acres of raiyati land including the plaint 'A' Schedule. He was in possession of the said lands since about 40 years in his own right, title and interest and had otherwise perfected his title thereto by adverse possession. The Defendant without the knowledge and consent of the Plaintiff and under some arrangement with Late Baidyanath Banerjee came to possess the Schedule 'A' land on the condition that he would enjoy the land so long he would be regularly rendering the service of 'Dhupa' to the Goddess 'Samsan Kali' and in the event of his failure to render such service he (Defendant) would lose his right to enjoy the land and would part with possession thereof in favour of the original tenant Baidyanath Banerjee or his successor -:in -interest, as the case may be. The Defendant rendered service of 'Dhupa' to the Goddess 'Samsan Kali' and enjoyed the land described in the Schedule 'A' for some years, but after the death of Baidyanath Banerjee in or about 1950 the Defendant gave up rendering the service and consequently lost his right of enjoying the property. Indeed, a few months after the death of Baidyanath Banerjee, the Respondent parted with possession and enjoyment of suit lands in favour of the Plaintiff and since then the Plaintiff possessed the same in his own right, title and interest and adversely to the entire world including the Defendant till his dispossession by the latter. It was the further case of the Plaintiff that he was staying at Ranchi and taking advantage of his long absence from Jharsuguda, the Defendant in or about 1961, without any right whatsoever trespassed upon the suit land and wrongfully possessed the same by constructing houses thereon behind his back and without the knowledge and consent of the Plaintiff. The Plaintiff after coming to know about the wrongful possession of Defendant over schedule 'A' land as aforesaid, demanded vacant possession of the land from the latter orally as well as by issuing notice, but without any success. Hence, the suit for reliefs noticed earlier.

(3.) ON appeal by the Plaintiff the lower appellate court on assessment of the evidence on record concurring with the finding of the trial court held that the Plaintiff could not prove that he ever dispossessed the Defendant from the suit land and that he himself possessed it at any time between 1951 and 1960. The court further held that materials on record clearly established that the Defendant came into possession of the suit land by virtue of the gift made in his favour in 1944, and continued in possession of the suit land since then. The first appellate court also observed that the trial court rightly came to the conclusion that it was not proved in the case that the Defendant constructed a house on the suit land only in 1962 and not prior to that. The submission on the question of law that the deed of gift in favour of the Defendant being an unregistered one, was invalid and was not accepted by the court below. Hence, this appeal by the Plaintiff against the aforesaid concurrent decision of the court below.