Decided on January 22,1973

Mst. Jurmati Bewa And Others Appellant
Anwar Rasul And Others Respondents


R. S. Bindra, J. - (1.) THIS is an appeal by the defendants against the decree of Sri M. M. Rahman, Subordinate Judge, Gauhati, dated 7th September, 1967, whereby he granted a declaration to the plaintiff Putuli Rasul of her title to the property in dispute and awarded her khas possession thereof by demolition, if necessary, of the temporary structures set up by the defendants. In addition, the plaintiff was awarded a decree for Rs. 920/ - by way of mesne profits as also the costs of the suit.
(2.) THE plaintiff Putuli Rasul had alleged in the plaint that her brother Anisur Rasul had purchased the land in dispute from Bilahi Dasya and Sabitri Dasya following an earlier mortgage by them in his favour. Anisur Rasul happened to construct some houses on the purchased land and thereafter he made a gift of the land together with the houses standing thereon in favour of the plaintiff. Out of the gifted property the plaintiff leased out the northern part of it to the defendant No. 1 Jurmati against the rental of Rs. 40/ - per mensem. The defendant No. 1 paid the rent for sometime, but when the plaintiff asked her to vacate the land she (Jurmati) not only refused to do so but also stopped paving rent from January, 1951. The plaintiff thereupon served eviction notice on the defendant No. 1 calling upon her to vacate the premises by 31st July, 1951. On Jurmati's failure to do so, the plaintiff filed Title Suit No. 204 of 1951 in the Sadar Munsiff's Court at Gauhati claiming Jurmati's eviction and arrears of rent. Jurmati resisted that suit by denying that she was a tenant of the plaintiff. That suit was decreed by the Munsiff on 12th July, 1952, but that decree was set aside by the Additional District Judge, Gauhati, on 24th February, 1955. The plaintiff's appeal against the appellate decree was dismissed by the High Court on 3rd December, 1956. Thereafter the plaintiff served a fresh notice of eviction on Jurmati and having had no response she filed the suit out of which the present appeal has arisen on 10th May, 1957. The reliefs claimed were the eviction of the defendant Jurmati and her two sons, defendants Nos. 2 and 3, from the premises in dispute and for the recovery of a sum of Rs. 720/ - as mesne profits for the period 1st January, 1953. until the date of the suit, besides Rs. 200.00 respecting the price of some demolished houses. The defendants resisted the suit by denying that the land originally belonged to Bilahi Dasya and Sabitri Dasya, or that Anisur Rasul had purchased the land from them, or that Anisur Rasul had made a gift of the land to the plaintiff. They also denied that the plaintiff had leased out the land to Jurmati. It was pleaded that the suit of the plaintiff was barred both by limitation and res judicata.
(3.) THE defendants pleaded further that one permanent structure standing on the land had been set up by Chengaram Singh, the husband of defendant No. 1 and the father of the other two defendants, though in paragraph 7 of the written statement they candidly admitted that they had "no knowledge how and when the late Chengaram came into the land." However, they alleged further in the same paragraph that Chengaram was living In the property since before he was married to the defendant No. 1, that he was then running on the premises "a carpentry of his own", and that, the defendants Nos. 2 and 3 were born there. Chengaram Singh, it was stated, had died about 17 years ago and the defendants had been continuing in possession of the property since then in their capacity as its owners.;

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