Decided on February 25,2022

Dhirendra Ch. Banik Appellant
Birendra Ch. Banik Respondents


ARINDAM LODH,J. - (1.)Heard Mr. P. Roy Barman, learned senior advocate who is appearing for the appellant along with Mr. K. Nath, learned advocate. Also heard Mr. A. Roy Barman, learned counsel appearing for the respondent.
(2.)Both the appeals are taken up together for disposal by a common judgment since common questions of facts and law are involved therein. Appellant's case in brief is that appellant Dhirendra Ch. Banik (defendant No. 1 at the trial Court) and respondent, Birendra Ch. Banik (plaintiff in the trial Court) are full blooded brothers. Their father Nawadwip Chandra Banik died in the year 1969 leaving behind six sons and three daughters including the appellant. During his life time said Nawadwip Chandra Banik executed registered Will vide No. III-9 dtd. 18/9/1967 bequeathing his entire landed property measuring 10 Ganda 1 kara to his three sons namely, Birendra Chandra Banik (respondent herein who was plaintiff at the trial court), Hirendra Ch. Banik and Khirendra Ch. Banik. Said Nawadwip Chandra Banik did not give any share of his property to his other sons and daughters including the appellant. Thereafter, by dint of registered Will No. III-9, dtd. 18/9/1967, there was partition of this property amongst the three brothers who became the owners of the entire land of Nawadwip Ch. Banik. The plaintiff (respondent herein) became the owner of the suit property on the strength of the said partition. It was the case of the plaintiff that he permitted the defendant(appellant herein) over the suit property and accordingly, the defendant started to possess the suit property by way of making some constructions thereon. In the year 2015, the plaintiff for his own requirement requested the defendant to vacate the suit property. The defendant denied. That gave rise to the cause of action for filing the instant suit. On such refusal, the plaintiff had no other alternative but to file the instant suit claiming declaration of right, title and interest and recovery of khas possession over the suit land.
(3.)After receipt of the copy of the plaint, the defendant filed written statement. The defendant also filed a counter claim. In the written statement, the defendant has taken the plea of adverse possession. In counter claim he has claimed that he acquired the right, title and interest over the suit property by way of adverse possession. The defendant's case is that while he had been possessing the suit land, the plaintiff had requested him in the year 1980 to vacate the suit property when he virtually denied and refused to vacate the suit property. But, the plaintiff did not take any attempt to evict him from the suit property. As such, his claim is that his possession has become hostile against the plaintiff since 1980 and he has acquired right, title and interest over the suit property after expiry of 12 years.

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