PRABHAT KUMAR DEY, J. - (1.) THIS Appeal is directed against the judgment and decree dated 30th June, 2006 passed by the Ld. Civil Judge (Senior Division), 2nd Court, Barasat in Title Appeal No.95 of 1996 whereby affirmed the judgment and decree dated 13.06.1996 passed by Ld. Munsif, 2nd Court Barasat in Title Suit No.657 of 1982 declaring plaintiff's title in respect of Plot No.4227 appertaining to Khatian No.5608 of Mouza, Halisahar and also granting permanent injunction against the defendants.
(2.) DURING admission it was decided by the Honourable Division Bench that this appeal would be heard on the following substantial questions of law :- 1. Whether the Ld. Courts below committed substantial error in law in finding the title of the plaintiff in the suit property notwithstanding the fact that the said plaintiff would not produce any valid document to establish the title to the suit property. 2. Whether the Ld. Courts below committed substantial error in law in not properly considering the Exbts. A, B and C for the purpose of deciding the suit. In order to decide the aforesaid points it is not necessary to make the detailed reference to the checkered history of the litigation between the parties. We may, however, briefly narrate the facts. The appellants and the respondent No.3 to 8 herein were the defendants and the respondent No.1 was the sole plaintiff before the Trial Court in Title Suit No.657 of 1982. The plaintiff Naren @ Biswanath Dutta made out the specific case in the plaint that he took settlement of C.S. Plot No.4227 measuring 16 Decibels of Halisahar Mouza that suit property from the then Zaminder Khitindra Kumar Dutta of an annual rent of Rs.2 ' 10 Annas and he is in possession of the suit land by enjoying the usufructs from the suit bearing trees standing thereon. During revosional settlement the plaintiff's name was recorded in R.S. Khatian No.5608 and he was paying rent initially to the Zamindars and thereafter to the Government of West Bengal. To the contiguous east of the suit land there is home state of plaintiff's mother and the plaintiff and his mother live together in the said house in joint mess. To the contiguous east and north-eastern side there is house of the defendants. The defendants in spite of having no manner of title and possession in the suit land at any point of time are threatening the plaintiff to dispossess him from the suit land and also threatened that they would collected fruits from the trees standing thereon which prompted the plaintiff to file the suit for declaration of title and permanent injunction. The defendants contested the suit by filing written statement contending inter alia that they have their own home state on the north-eastern side of the alleged suit property, Dag Number, Khatian Number of which have been wrongly described. The plaintiff and defendants are residing side by side but there was no demarcation ever. As such, the suit could not be maintained without local investigation. The defendants further stated that if at all the plaintiff's name is recorded in the record of rights the same is erroneous. The plaintiff never owned and possessed the suit property. On the other hand, the suit property is within the purchased land of the defendant No.2 since 1958 and they are in possession of the same by plantation of fruit bearing trees as well as enjoying usufructs therefrom. The defendant's further case is that the plaintiff filed the criminal case when the defendants were constructing home but the plaintiff failed to prove possession in the suit land and criminal case filed. The defendants are asserting hostile title since then and adversely possessing the suit property. Accordingly, they have prayed for dismissal of the suit.
(3.) BEFORE the Trial Court, the plaintiff examined 3 witnesses P.W. Nos. 1 to 3 including himself as P.W.1. As documentary evidence, rent receipts, Parchas were marked as Exbts. 1, (1a), 2, 3, (3a), (3b) and (3c), 4 and 5. On behalf of the defendants, defendant No.2 examined himself as D.W.1 and one Kalipada Chakraborty as D.W.2. 3 original deeds dated 13.11.1958, 03.02.1952 and 15.03.1951 were marked as Exbts. A, B and C respectively. The Trial Court after hearing both the parties and appreciation of the evidence on record declared plaintiff's title and believed plaintiff's possession in the suit property and thereafter decreed the suit and restrained the defendants permanently from interferring with the plaintiff's possession in the suit property vide Judgment dated 13.06.1996. Feeling aggrieved by the judgment and decree of the Trial Court, defendants approached the Civil Judge (Senior Division), 2nd Court, Barasat in Title Appeal No.95 of 1996. The first Appellate Court by its Judgment dated 30.06.2006 affirmed the judgment and decree passed by the Ld. Trial Court and thereby dismissed the appeal against which the present appeal being S.A.473 of 2007 has been preferred.;