BHUDEV OJAH Vs. KISHAK BAYAN

JUDGEMENT

(1.) The subject matter of challenge in the instant appeal under section 100 of the Code of Civil Procedure, 1908 (as amended) (hereafter for short referred to as the Code) is the judgment and order dated 24.03.2010, passed by the learned Civil Judge, Barpeta, in Title Appeal No. 29/2007 dismissing the appeal of the present appellants. The appeal before the first appellate court was against the judgment and decree dated 19.06.2007 and 20.06.2007 passed by the learned Munsiff No. 1, Barpeta in T.S. No. 41/1998, decreeing the suit of the respondents-plaintiffs. By the decision impugned in the instant appeal concurrent findings of facts have been recorded.

(2.) I have heard Mr. BK Bhagabati, learned counsel for the appellants and Mr. P. Upadhyay, learned counsel for the respondents.

(3.) A brief outline of the rival pleadings would be necessary. The aforementioned suit was initially instituted by Sri Kishak Bayan and another against Sada Ojah (since deceased), the father of the appellants herein and others. The case of the plaintiffs aforementioned, is that the suit premises owned by the Barpeta Municipal Board/Barpeta Municipality and described in the plaint, had been settled with them by it on payment of rent and the taxes payable therefor. The electricity charges as well, were being paid by the plaintiffs and they utilised the said premises, which was incidentally room No. 23 by running a pharmacy in the name and style of "Mohini Pharmacy" thereat. The plaintiffs alleged that on 17.04.1998, the defendant (the father of the present appellants) forcibly entered the said room and since then had been occupying the same by show of force. As in spite of several requests he did not vacate the same, the aforementioned suit was filed for decree for declaration of the plaintiff's right, title and interest over the suit premises and also for khas possession thereof by evicting the defendant. A decree for permanent injunction for preventing the defendant and his associates from disturbing the plaintiff's possession of the suit room, was also prayed for. The defendants contested the suit, inter alia, by contending against its maintainability on the ground of non-joinder or misjoinder of necessary party. He also pleaded that as the room belongs to the Barpeta Municipal Board/Barpeta Municipality, the plaintiff could not have sought for a declaration of their right, title and interest therein as well as permanent injunction. According to him, the plaintiff No. 1 and one Kamala Kanta Bayan were brothers and the former separated from the latter long before and started a pharmacy of his own named as "Sonpahi Pharmacy" at Nalbari. The defendant, however, admitted the settlement of the suit premises in favour of the plaintiffs by the Barpeta Municipal Board/Barpeta Municipality at the monthly rent of Rs. 1263.00. According to the defendants, the plaintiffs sublet the room to his brother Kamala Kanta Bayan (since deceased) at a fixed rent. On the demise of the Kamala Kanta Bayan, the room remained closed. The defendant's son Sri Pradip Ojah approached the plaintiff's son seeking possession thereof on rent. The defendant further asserted that on a consensus reached, the suit room was handed over to Sri Pradip Ojah at a monthly rent of Rs. 500.00 and the latter also managed to obtain a pharmacy licence captioned as "Service Chemist and Druggist".The defendant, therefore, contended that the room was thus in possession of his son. He also alleged interference with his possession by the plaintiff's son on 17.04.1998.