SUIEKHA GHOSH Vs. PANCHANAN SHIB BIGRAHA

JUDGEMENT

(1.) Having lost in both the Courts, this second appeal has been filed by the tenant against the judgment and decree of the learned Assistant District Judge No. 2, Cachar at Silchar in Title Appeal No. 64 of 1975.

(2.) The suit was filed on behalf of the deity Sri Panchananda Shib by the Sabait/Mahanta late Lasman Giri. During the pendency of the litigation Lasman Giri died and the present Manager was allowed to continue the legal proceedings on behalf of the deity.

(3.) Briefly stated, the case of the plaintiff is that by a lease dated 26.3.1954 Sabait Lasman Giri leased out an area of 1 Bigha, 2 Katha, 11 Chatak of land to one Banka Behari Purkayastha who relinquished the land in favour of the deity by a deed dated 1.12.63. However, the present appellant-defendant filed a suit being Title Suit No. 53 of 1954 against said Banka Behari Purkayastha and one Smti Suruchi Bala Nandi claiming her jute right and possession in respect of 1/2 of the land covered by suit Dag No. 769 of Patta No. 59 of Mouza-Silchar town, Pargana Barakpar District-Cachar. In the said suit the deity was not made a party. According to the defendant-appellant the suit land was leased out by Sabait Someswarananda Giri by a deed dated 21.2.49 to the present defendant-appellant and Smt. Suruchi Bala Nandi. But Suruchi Bala sold the entire land to Banka Behari Purkayastha and as such the present defendant-appellant had to file the above Title Suit No.53 of 1954 claiming jute right over 1/2 partition of the land and also for possession by partition. The said suit was decreed in favour of the present defendant-appellant and decree was upheld by this Court. There is no dispute that the period of lease dated 21.2.49 executed by Someswarananda Giri in favour of the present defendant-appellant and Suruchi Bala was for 10 years only commencing from 9th Falgun, 1355 B.S. The present defendant-appellant obtained the final decree in the said Title Suit No. 53 of 1954 on 19.3.1965 and after getting possession constructed house on the land. According to the plaintiff-respondent in view of the above Title Suit, the interest of the deity over the suit land was clouded and as such a notice to quit dated 23.12.1964 was issued and received by the present defendant-appellant on 22.1.1965. By the said notice, the defendant appellant was asked to Vacate and hand over the possession of the suit land within 8th Magha, 1371 B. S. According to the defendant-appellant, the deed of lease dated 26.3.1954 and deed of relinquishment dated 1.12.1963 between Lasman Giri, on behalf of the deity and Banka Bthari Purkayastha were fake and collusive. The defendant-appellant has also pleaded that she is entitled to claim benefit under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, for short, 'the Act' as she constructed permanent structure and as such she cannot be evicted.