- (1.) THIS Court has heard the learned advocates for the respective parties. The facts of the case, very briefly, are as follows: -
(2.) THE respondent in this appeal had filed a suit against the appellant praying for declaration of her right, title and interest over the property in dispute and eviction of the appellant from a portion thereof. The respondent claimed that she had purchased the suit land on 30.12.1998 from the Niketan Land Development and Housing Cooperative Society, of which she was a member and she had constructed a building thereupon with her own funds which she acquired by obtaining loans from her office and banks etc. It appears that there was an intimate relationship between the parties and the respondent has alleged that owing to such intimacy she executed a power of attorney on 03.01.2003 whereby she authorized the appellant to supervise the construction work of the respondent 's building on the suit land and other connected activities. It further appears that the respondent had already entered into an agreement with the appellant to sell the second floor of the suit building at a certain price. The respondent 's case is that the appellant has been occupying illegally a certain portion of the suit property and the appellant refused to vacate the suit property and, as such, the respondent had to file the said suit asserting her right, title and interest in the suit property. The appellant contested the suit by filing written statement and the case of the appellant was that the appellant and the respondent came into contact with each other and developed a relationship and consequently they were married. The appellant 's case was that the respondent had executed a power of attorney on 15.03.2003 and on the basis of such power of attorney the appellant constructed the building on the suit plot with his own funds. The appellant 's further case was that on 3.11.2003, the respondent executed a agreement and sold away the second floor of the suit building to the appellant at a certain price and the appellant has been occupying the entire suit property and running his business therefrom on the strength of these two documents. The appellant, thus, prayed for dismissal of the suit. The suit came up for hearing and both the parties adduced their respective evidence and after considering the materials on record, the learned trial court came to the conclusion that the respondent has legal right, title and interest over the suit property and the appellant has no such right, title and interest over the suit property. The learned trial court passed a decree declaring the right, title and interest of the respondent in the suit property and directed the appellant to vacate the suit property which was under his occupation.
(3.) CHALLENGING such judgment and decree of the learned trial court, the appellant filed an appeal being Title Appeal No.03 of 2009, which was placed before the court of learned District Judge, A & N Islands. It may be recorded here that the aforesaid suit was numbered as Other Suit No.57 of 2006 and the judgment and decree dated 29.11.08 in the aforesaid suit was passed by the learned Civil Judge (Senior Division) at Port Blair. The learned lower appellate court has dismissed the aforesaid title appeal by the impugned judgment and decree dated 15.07.2010.Challenging such judgment and decree of the learned lower appellate court, the defendant in the suit has preferred the instant second appeal. It appears from records that an Hon 'ble Division Bench of this Court by order dated 15.03.2011 has been pleased to formulate the substantial question of law involved in this appeal as follows: "Whether both the courts below were justified in passing the decree for eviction against the defendant/appellant without considering the protection available under section 53A of the Transfer of Property Act, in the facts of the instant case, particularly when the possession of the defendant in the part of the suit property is admitted by the plaintiff and the defendant claims such possession in the suit property on the basis of the agreement for sale entered into between the parties? " ;