MAHAPRABHU RAM Vs. GOPAL RAM RAM

JUDGEMENT

(1.) This appeal by the plaintiff by special leave is from the judgment and decree of a learned Single Judge of the High Court Division, Comilla Bench, in Second Appeal in affirmance of those of the first appellate Court which allowed the appeal and dismissed the appellant's suit for partition. The trial Court decreed the suit.

(2.) The appellant's suit for partition being Partition Suit No. 34 of 1974 of the 3rd Court of Subordinate Judge, Comilla, filed on 23.2.72, was based on the averments, inter alia, that the appellant's father Raj Kumar and the father of defendant-respondent Nos. 1 and 2 Surya Kumar were brothers. They took joint settlement of the suit land, a tiny town property at Comilla, in 1934 and started living there together after erecting huts as monthly tenants of the land. Raj Kumar died in 1939. The landlords filed Title Suit No. 170 of 1940 in the 3rd Court of Munsif, Comilla for arrear rent and eviction against Surya Kumar and the heirs of Raj Kumar including the appellant. The landlords did not press the claim for eviction and were satisfied with a decree for rent only on 5.9.50. It was further averred by the plaintiff-appellant in his plaint that both the plaintiff and the defendants had no title to the suit land on the date of filing of the said suit for eviction. But after the decree they continued to occupy and possess the suit land as tenants. The appellant in course of time became full 8-anna owner of the suit land upon the successive deaths of the other heirs of Raj Kumar. The appellant's mother shifted to her brother's house at Shimulia about 12 years back and died there. The appellant worked and lived elsewhere at Comilla town, but continued to occupy a kerosene tin shed in the suit land which yielded to decay about 9 or 10 years back. The appellant wanted to marry and raise a new hut on the suit land only to be obstructed by his uncle on the plea that the suit land had been recorded in his name. The matter was referred to the adjudication of the Union Committee but Surya Kumar would have none of it. The appellant has since married and had been living with his wife at Comilla town elsewhere. Surya Kumar died in April, 1971 and his heirs, the defendant-respondents, went to Kachar following crackdown of Pak Army in 1971. The appellant also made good his escape to Tripura in 1971. In January, 1972 the appellant came back and occupied the disputed homestead where he is living now with his family members. The R.S. Khatian has been wrongly prepared in the name of Surya Kumar. He demands 8 as. share of the suit land by partition of the joint family homestead by metes and bounds.

(3.) Defendant-respondent Nos. 1 and 2 filed a joint written statement contesting the suit. They contend that the appellant has no right, title and interest in the suit land. Surya Kumar alone obtained settlement of the suit land from the landlord. Raj Kumar did not erect any hut in the suit land. He died in the house of one Monohar Mistry in 1346 B.S. The appellant's mother died at Shimulia 16 or 17 years back and thereafter the appellant lived at Laksham and elsewhere. The disputed huts are not in ejmali and the appellant has not acquired any interest in the disputed property. The defendants are in possession of the disputed property by inheritance from their father who had exclusive interest and title in the same. Since 1943 it is the father of the defendants who had been paying rents and taxes.