UTTAM KUMAR SEN Vs. GITA DAS CHOUDHURY

JUDGEMENT

(1.) This Second Appeal arises from the judgment of the learned District Judge, South Tripura dated 29th January, 1991, whereby learned District Judge dismissed the appeal of the present appellants affirming the judgment of the learned Munsiff, Sabroom passed on 7.12.1984 in T.S. No.l of 1981 decreeing the suit of the plaintiff (now represented by LRs) as respondents in this Second Appeal.

(2.) The plaintiff i.e. the predecessor of the present respondents filed the suit in the year 1981 for a decree of khas possession of the huts more particularly described in the Schedule "Kha" to the plaint and also for restraining the defendants from entering into or doing any act of possession in the land measuring 11 gandas 2 kara 1 krant and 3 dhurs appertaining to C.S. plot Mo. 1113 of khatian No. 467 of mouza Sabroom (more particularly described in the Schedule "Ka" to the plaint. The plaintiffs case was that in the year 1957 he reclaimed the land described under schedule ''Ka" to the plaint and after doing so he constructed a residential house thereon and thereafter allowed his younger brother to stay in the house. Subsequently, he also constructed a few more huts to accommodate other members of the family. During; last survey settlement operation i.e. in the year 1964 the original owner viz. Smti. Debalaixmi Devi appeared and at that time the plaintiff purchased the aforesaid land from her by an ura-registered deed at a consideration price of Rs. 100/-. But the vendor viz. Smti. Debalaxtmi Devi could not execute the sale deed as at that time she had been suffering from leprosy. However, the plaintiff allowed his maternal cousin defendant No.3 to stay with him in one of those huts for prosecution of his studies in Sabroom High School as his maternal uncle defendant No.l requested him for his accommodation. In the meantime, the family of the plaintiff became enlarged and it was difficult on his part to accommodate the defendant No. 3 to stay with him. So, the defendant No. 3 was separated and he started living in a separate hut in the same homestead. But it was alleged that taking advantage of the absence of the plaintiff the defendant No. 3 with the help of defendant No. 1 reconstructed a deserted cow-shed of plaintiff and converted it to a kitchen. When the plaintiff came back to his house he was surprised to see it and hence he asked the defendant No. 3 to vacate. But the defendant No. 3 turned a deaf ear to that request. The plaintiff, therefore, issued a pleader notice. But the defendants did not vacate the suit premises even after receipt of the notice of the pleader. Therefore, the plaintiff filed the suit for the reliefs as stated above.

(3.) The defendants resisted the suit by filing a written statement wherein they denied all the material averments of the plaint and contended further that defendant No. 1 was the real owner of the land by purchasing it from one Indu Bhusan Dewanji and after this purchase he permitted the plaintiff to stay in a house which was constructed by him through his younger brother (now dead). The defendant No. 1 was at that time working in Calcutta so after his retirement he came back and started living in the suit premises. The further contention of the defendants was that during last survey settlement operation the defendantNo. 1 asked the plaintiff to look after the survey operation in respect of the suit land. But the plaintiff in collusion with the officers of the survey settlement office got his name entered in the khatian which fact he came to know only after institution of the suit. It was contended that two daughters of defendant No.1 who are now married got their education staying in the same house and as such the claim of the plaintiff that he constructed the house or that he permitted defendant No. 3 to stay there for the purpose of prosecution of his studies are nothing but a myth. The answering defendants also averred that they acquired the right to the suit land by virtue of their adverse possession of it for more than the period of statutory limitation.