Decided on November 27,2018

Amulya Saha And Ors Appellant
Lilabati Roy And Ors Respondents


Prasanta Kumar Deka, J. - (1.) Heard Mr. G. P. Bhowmick learned senior counsel assisted by Ms. M. Kalita learned counsel for the petitioners and also heard Mr. G. N. Sahewalla learned Senior counsel assisted by Ms. B. Sarma, learned counsel for the respondent Nos. 18 to 28.
(2.) The present petitioners are plaintiffs in Title Suit No. 8/1999 in the Court of learned Civil Judge (Sr. Division), Barpeta which was filed against 30 nos. of defendants seeking (a) for the plaintiff's tenancy right and they are not evictable from the commercial suit premises (b) plaintiff's right, title and interest and possession and (c) for confirmation of possession for permanent injunction in favour of the plaintiffs restraining the defendants permanently from selling the suit premises etc (d) for the cost of the suit. The suit premises consists of a plot of land measuring 1 katha 5 lechas out of 2 kathas 10 lechas covered by periodic patta No. 74/469 of dag No. 707 situated at Barpeta Road Town under Mauza Gobardhana over which two C. I. Sheet houses with latrine and pucca well are standing with defined boundaries. One late Birendra Kumar Roy was the original owner of the said land measuring 1 katha 5 lechas and late Jogesh Chandra Saha, the predecessor-in-interest of plaintiffs petitioners took on lease the said land and started his business thereon. The rent was fixed at Rs 1051/- per month of the suit premises. Jogesh Chandra Saha died in the year 1982 and on his death his legal heirs inherited the tenancy over the suit premises which is a commercial one. Said Birendra Kumar Roy died living behind three sons Naresh Roy, Kamakhya Roy and Ramesh Roy alongwith three daughters Hena Roy, Maloti Roy and Bula Roy. On the date of filing the suit i.e. on 3.5.2001 Kamakhya Roy died leaving behind his legal heirs the defendants respondents No. 2 to 7. Romesh Roy also died prior to filing of the suit leaving behind his legal heirs, the defendants respondents No. 8 to 14. The defendants respondents No. 15, 16 and 17 are the daughters of late Birendra Kumar Roy. After filing of the suit the names of the defendants respondents No. 7, 13, 15,16,17,29 and 30 were struck off at the first appellate stage. It is pertinent to mention that the defendants respondents No. 29 and 30 are the legal heirs of Birendra Kumar Roy.
(3.) The said tenancy was inherited by plaintiffs petitioners and continued vide written agreement and the last agreement was entered into between the plaintiff petitioner No. 1 and Naresh Roy and the rent fixed at Rs 1501/- per month of the suit premises. Dispute started amongst the heirs of Birendra Kumar Roy with respect to the ownership of the suit premises and as a result the said legal heirs declined to accept the monthly rent of the suit premises. The plaintiffs petitioners were compelled to deposit the monthly rent in the court. The plaintiffs petitioners discussed with Naresh Roy in respect of transfer of ownership of the suit premises in favour of the plaintiffs petitioners. The said Naresh Roy assured the plaintiffs petitioners orally that the suit premises would be sold in favour of the plaintiffs petitioners but they came to know that the ownership of the suit premises was transferred to the defendants respondents No. 19 to 28 by way of a registered sale deed bearing No. 30/1999 dated 20.1.1999 registered in the office of the Sub-Registrar, Pathsala. The said sale deed was executed by the defendant respondent No. 18 on the strength of a registered deed of power of attorney bearing No. 217/98 dated 11.9.1998 purportedly executed by 13 nos. of legal heirs of late Birendra Kumar Roy which includes his son Naresh Ch Roy. It is further pleaded that all the heirs of Birendra did not execute the said power of attorney nor the sale deed but the defendants respondents asked the plaintiffs petitioners to vacate the suit premises for which the suit was filed seeking the reliefs hereinabove mentioned.;

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