SUSHIL CHANDRA DEY Vs. TARAKNATH

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment and order dated 9.7.93 passed by learned Single Judge in First Appeal No. 63/87 dismissing the appeal and affirming the judgment and decree passed by the trial Court.

(2.) The case of the plaintiffs/respondent No. 1 to 4, inter alia, is that Khan Bahadur Saiyed Mohammed Mahibulla (since deceased), the predecessor-in-interest of respondent Nos. 7 to 15 at all material time was the absolute owner of a plot of land measuring 1 katha 4 Lechas included in K.P. Patta No. 771, covered by Dag No. 2296 of Lakhtokia, Mouza Guwahati, along with houses standing thereon. Khan Bahadur Saiyed Mohammed Mahibulla died leaving behind four sons and five daughters. The daughters of late Khan Bahadur Saiyed Mohammed Mahibulla after the death of their father relinquished their shares in the suit property which they inherited from their father as per provisions of Mohammedan Law in favour of their brothers. They executed a document purportedly a deed of gift of their share in the property to their brothers and the said brothers accepted the gift and thereby the sons of late Khan Bahadur Saiyed Mohammed Mahibulla became the absolute owners of the said property i.e. 1 Katha 4 Lechas with the houses standing thereon mentioned above. After the gifts the sons of Late Khan Bahadur Saiyed Mohammed Mahibulla amicably partitioned their property and gave the suit property exclusively to Late Saiyed Badiul Alam, the predecessor- in-interest of respondent Nos. 7(i) to 7 (v) and in evidence thereof they executed a written document on 6.12.77. Late Saiyed Badiul Alam began to possess the suit property as his own. Bipin Behari Dey, the predecessor-in- interest of the present appellants was in occupation of the premises described in the schedule to the plaint as a tenant under late Khan Bahadur Saiyed Mohammed Mahibulla. Late Bipin Behari Dey, after Late Saiyed Badiul Alam became the absolute: owner of the property, duly attorned him as landlord. Late Saiyed Badiul Alam, predecessor-in-interest of respondent Nos. 7(i) to 7 (v) being in need of money wanted to sell the suit property. Respondent Nos. 1 to 4 also being in need of the property agreed to purchase the suit property from late Saiyada Badiul Alam. Accondingly, late Saiyada Badiul Alam, made an agreement with respondent Nos. 1 to 4 on 7.6.79 to sell the suit property for a consideration of Rs. 50.000/- and received a sum of Rs. 6,000/- from the respondent Nos. 1 to 4 as advance. Thereafter, pursuant to the said agreement the predecessor-in-interest of respondent Nos. 7(i) to 7 (v) Late Saiyada Badiul Alam sold the property in favour of respondent Nos. 1 to 4 i.e. the plaintiffs, after obtaining mecessary permission in the name of respondent No. 1 by executing a registered deed of conveyance on receipt of the balance amount of Rs,. 44,000/- on 6.8.79 At the time of sale, as stated above, the said property was under occupation of late Bipin Behari Dey. Bipin Behari Dey died leaving two sons, namely, Sushil Ranjan Dey and Sudhir Ranjan Dey and two daughters, namely, Hema Late Mazumder and Angur Bala Mazumder. However, the daughters being married remained away from the suit premises. Only Sushil Ranjan Dey was actually in occupation of the suit property. Immediately after purchase the respondent Nos. 1 to 4 through their Advocate intimated said Sushil Ranjan Dey, the predecessor-in-interest of appellant Nos. 1 to 6 by a formal notice dated 4.9.79 abut the purchase, asking them to comply with their duties as tenant. Respondent Nos. 1 to 4 needed the property fan their own use. Besides, the tenants sublet the suit property and also failed to keep the property in proper manner. Therefore, respondent Nos. 1 to 4 issued a notice dated 3.2.80 to the tenants asking them to quit, vacate and deliver up vacant possession by the end of 29th of February, 1980. The said notice was duly received by them and they sent a reply on 23.2.80 through their Advocate stating that they were not a monthly tenant under the vendors of respondent Nos. 1 to 4 and also under them. They repudiated the claim of respondent Nos. 1 to 4 and claimed that they were not liable to be evicted by the respondents. Besides the vendor of respondent Nos. 1 to 4 late Saiyed Badiul Alam was not the sole owner and had no authority to sell the entire property. Therefore, the suit would not be maintainable by respondent Nos. 1 to 4 The plaintiffs requested the defendant Nos. 1 to 2 to quit and vacate the suit houses as they needed the same for their own use and occupation. They were living in rented houses. They purchased the suit house only for that purpose. The defendant Nos. 1 and 2 did not comply with the request. On the other hand they denied the title of the plaintiffs. Situated thus, the plaintiffs were compelled to bring a suit for declaration of plaintiffs' right, title and for recovery of possession. Late Sushil Chandra Dey, predecessor-in-interest of respondent Nos. 1 to 6 filed written statement. In the written statement he admitted the fact that the suit property belonged to late Khan Bahadur Saiyed Mohammed Mahibullah, However, he admitted that Late Khan Bahadur Saiyed Mohammed Mahibulla died leaving his heirs, namely, sons daughters and Late Saiyed Badiul Mara He also stated that he and Sudhir Dey had been in occupation of the premises as tenant on arrangement to pay rent @ Rs. 30/- He denied that the defendant No. 5 namely; Late Saiyed Badiul Alam became the absolute owner of the suit premises. According to him originally Bipin Behari Dey, father of defendant Nos. 1 to 4i was a monthly tenant in respect of the houses standing on the land measuring 1 Katha 4 Lechas of Dag No. 2296 covered by Periodic Patta No. 771 of Lakhtokia. He further stated that after the receipt of a notice dated 4.2.80 from Shri Atul Sarma, Advocate, Defendant No. 1 deposited rent in Court as before. The name of the plaintiff M/s Taraknath was also added with the names of defendant Nos. 5 to 14, the reason being that said M/s Taraknath purchased the property from defendant No. 5. It was specifically denied that the plaintiffs had absolute right, title and interest over the property inasmuch as other heirs of late Khan Bahadur Saiyed Mohammed Mahibullah were also co-owners of the said suit property. He denied any partition and relinquishment.

(3.) On the pleadings issues were framed and after recording the evidence of the witnesses the trial Court decreed the suit. A First Appeal was preferred by the present appellants before this Court and the learned Single Judge dismissed the appeal affirming the judgment and decree passed by the trial Court. Against that the present Letters Patent appeal.