N.L.Ganguly - (1.) -This second appeal is directed against the judgments and decrees passed by courts below decreeing the suit of plaintiffs for eviction of the defendant-appellants and recovery of damages for use and occupation of the suit property.
(2.) THIS second appeal was filed by the defendant-appellants in May 1984 as indegent persons along with section 5 of the Limitation Act application. More than 6 years were consumed in serving notices, restoration and for orders of section 5 Limitation Act applications. The respondents were served and on 21-11-1990 the applications of the appellants to file the appeal as indegent persons, section 5 Limitation Act was allowed and the second appeal was heard on 26th and 27th November, 1990 under Order 41 Rule 11 Code of Civil Procedure. The judgment was reserved which is now being delivered. Plaintiffs-respondents pleaded that house in dispute was owned by Suddhu. Smt. Udasi was mother of plaintiff Satnarain and Smt. Sukha was mother of plaintiff Raja Ram. Smt. Sukha and Udasi were the real sisters of Suddhu. Plaintiff- respondents had claimed the house as sisters' son of the owner of the house. The plaintiffs had further pleaded that Jagarnath the husband of appellant no. 1 and father of other appellants had entered in wrongful possession of Suddhu and were liable to be evicted and pay damages. Jagarnath, defendant no. 1, had pleaded that Suddhu had executed a will in his favour, as the marginal witnesses of the will had been won over by the plaintiffs, the probate proceedings were decided against him. Inspite of it, he pleaded that he had contributed money in purchasing the land and also on construction of the house to Suddhu. He thus pleaded that Sudhu was Benami owner. He also further pleaded adverse possession.
(3.) BOTH the courts below concurrently held findings of fact that plaintiffs are sons of Sukha and Udasi, the real sister of Suddhu and thus heirs. The courts below also recorded findings of facts that Jagarnath had failed to prove that he had contributed any money either for purchasing the land or in construction of house. The plea of adverse possession was also negatived by both the courts below on the ground that the suit had been filed admittedly much before expiry of 12 years.;