PALASH KUMAR SAHA Vs. SANTOSH CHANDRA ROY

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 25.10.2005 passed by a Division Bench of the High Court Division in Civil Revision No. 243 of 1987 discharging the rule.

(2.) The case of the plaintiff, in short, is that the suit jama appertains 25 decimals of land originally belonged to Banomali Das to the extent of eight anas share, Ramesh Chandra Das to the extent of four annas share, Harendra Nath Das and Babu Ram Das to the extent of two anas each. Banomali Das died leaving behind three sons defendant No.1, Surendra Chandra. The defendant No. 2, Taruni Chandra and Ramesh Chandra. Ramesh Chandra died leaving behind his brother Surandra Chandra and Taruni Chandra as his heirs. The another co-sharer, recorded tenant Ramesh Chandra also died leaving behind his son Manoj Kumar Das, the defendant No.3; Babu Ram died leaving behind two sons, Manindra Nath Das, the defendant No.8, and Fanindra Nath Das. Fanindra died unmarried and as such his share devolved upon his full brother, the defendant No.8. Harandra Nath Das died leaving behind his widow Charubala Das who inherited his share. There exits a path way in the middle of the suit plot stretching north-south and is about 4 cubit in measurement in width. The defendant Nos.1-3 is possessing the northern part of the suit plot for a period of more than 25-26 years. The defendant Nos.1-3 sold out some portion of their share to the defendant Nos. 4, 5 and 6 Charubala, the widow of Harendra Nath sold out her entire share to the defendant No.7 and delivered possession. The defendant No. 8, Manindra has sold out 4 decimals of land to the plaintiff by a registered deed of kabala dated 25.2.1975 and delivered possession. The plaintiff has been possessing the land since the date of kabala. But in the middle of Ashhin 1384 Bangla Shal, the defendant No.1 in collusion with the defendant Nos.2-3 and at the instance of the defendant No. 6 enclosed insider the land of the plaintiff and constructed a chala ghar and thus illegally dispossessed the plaintiff from the suit land and the defendants refused to remove those chala ghar from the suit land and hence the suit.

(3.) The defendant No.7 entered appearance and filed an application for separate saham contending, inter alia, that the recorded tenant Harendra Nath Das having his share to the extent of two anas, died leaving behind his only widow Charubala. And this defendant has purchased the entire two anas share measuring 5 decimals of land from Charubala, the said widow of Harendra Nath by registered deed of kabala dated 8.3.1975 at appropriate consideration. Charubala delivered possession to the defendant No. 7 who constructed dwelling house from south-west corner of the plot in question and has been possessing by paying rent to the Government since purchase and as such the defendant No.7 is praying for separate saham in respect of the said land.