ANOWAR HUSSAIN Vs. SHAJIT HUSSAIN

JUDGEMENT

(1.) Heard Mr. P.S. Deka, learned counsel for the appellant/plaintiff. Also heard Mr. B. Banerjee, learned Senior Counsel appearing for the respondents.

(2.) The case of the plaintiff is that he had purchased land measuring 2 Bigha 3 Katha 13 Lessa covered by Dag No. 437 of Khatian No. 348 and land measuring 3 Bigha 1 Katha 14 Lessa covered by Dag No. 476 of Khatian No. 333 in an auction sale vide order dated 31.12.1970 issued by the Additional Deputy Commissioner, Goalpara, Dhubri and that, finally, he was put in possession of the purchased land by the Nazir on 20.1.1990. His name was accordingly mutated in the land records. Pro-forma defendant Nos. 6 and 7, who are relatives of the plaintiff, were allowed to stay in two houses in schedule-A land. The predecessor-in- interest of the defendants, Altaf Hussain had been suffering from T.B. and he requested the plaintiff in the month of January, 1990 to allow him to stay in one house of the 'A' suit land and on compassionate ground, plaintiff allowed him to occupy one house for his treatment at Mancachar. He was subsequently asked to vacate the house on 12.5.1990. However, instead of vacating the house, he filed a title suit being T.S. No. 25/1990 in the Court of Munsiff , Dhubri, claiming that he was a tenant under one Abdul Gani in respect of land measuring 2 Bigha 3 Katha 13 Lessa covered by Dag No. 437 of Khatian No. 348. Altaff Hussain died during pendency of the suit and there being no substitution, the suit was dismissed on 19.1.1991. On 28.6.90, the defendant had also constructed a thatched house. Accordingly, plaintiff prayed for declaration of right, title and interest in respect of 'A' schedule land and recovery of khas possession in respect of 'B' Schedule , permanent injunction etc.

(3.) The defendant filed written statement taking various legal pleas like non-joinder of necessary parties, suit being not maintainable in law, etc. A stand was taken denying permissive occupation, as contended by the plaintiff. It is further stated that the suit land was homestead of one Nur Hussain, who alongwith his three sons and his deceased brother's three sons had been residing in the suit land, and after their death, the defendants, pro forma defendants and many others had been possessing the suit land. It is also pleaded that their landlord Abdul Gani migrated to Pakistan.