- (1.) This Court has heard the learned Advocates for the respective parties and has also considered the materials on record.
(2.) The facts of the case, briefly, are as follows: The plaintiff/appellant filed a suit against the defendant/respondent being title suit No. 17 of 1997 which was placed before the learned Civil Judge (Senior Division), 2nd Court, Barasat. The plaintiff/appellant prayed, inter alia, for a decree for recovery of khas possession of the suit property upon evicting the defendant from the suit property as described in the schedule of the plaint. It appears that the suit property happens to be lease in plot No. 142, in Block-BJ, Sector-II of the Northern Salt Lake city extension area, District of North 24-Parganas P.S. Salt lake, Calcutta-700091 with one storied building with a garage and mezzanine floor standing thereon. The case of the plaintiff/appellant was that the plaintiff/appellant is a lessee under the Government of West Bengal in respect of the said land upon which an one storied building with a garage and mezzanine floor have been constructed. The plaintiff/appellant stated that he got the lease of the said land in 1981 and after obtaining sanction of the building in 1992 started construction of the house in the same year i.e. 1992 and the building as it stands now was completed in 1992 but the defendant is in occupation of the same. The plaintiff further stated that he has one son who is a teacher in USA and the defendant is a son of the plaintiff's elder sister and the said defendant was very affectionate to the plaintiff and the plaintiff used to repose absolute faith and trust on the said defendant/respondent. In the plaint, the plaintiff has also alleged the manner in which the parties had agreed to occupy the respective portions of the suit property. The plaintiff has further stated in the plaint that the defendant who was in charge of the construction was requested to remove his goods and things from the mezzanine room in order to enable the plaintiff to go there and take steps for the construction of the house but the defendant refused to cooperate with the plaintiff and claimed that the house belonged to him as the defendant had spent very substantial amount for building it. The plaintiff has alleged that the plaintiff had borne a good amount of expenses in respect of the suit property but at the same time the plaintiff has admitted the fact that the defendant too had spent considerable amounts for the construction of the house. The plaintiff/appellant has also alleged in the plaint that the defendant agreed and defendant was assured that so long as the defendant lived he and his wife or the survivor of them would live on the ground floor of the suit property and there would be no hindrance but the status of the defendant and his wife would be that of a licensee or life tenant and nothing more than that. It further appears from the plaint that it has been alleged by the plaintiff that the defendant was assured that he and his wife would be allowed to live on the ground floor of the suit property till their respective natural lives and the plaintiff would shift to the mezzanine floor portion enjoying some facilities on the ground floor jointly with the defendant and gradually make first floor construction for the plaintiff's occupation with the members of his family. According to the plaintiff, the total expenses for construction of the house did not exceed rupees 9,00,000/- (Rs. nine lakhs) and the defendant, after proper accounting, may get refund of the same provided he agrees to vacate the suit property. According to the plaintiff, the plaintiff is also entitled to mesne profits.
(3.) The said suit was contested by the defendant/respondent by filing written statement/additional written statement. It appears that the defendant did not dispute the fact that the plaintiff is a lessee under the Government of West Bengal in respect of the said land. The defendant's case was that the Government of West Bengal had issued a notice to the effect that the plot holders in the Salt Lake city who did not construct buildings on their respective plots and kept the same vacant would be liable to return back the said plots to the Government of West Bengal for re-allotment to other persons. The defendant alleged that the plaintiff at that point of time was keeping the said plot vacant and did not have the necessary funds to make the construction and finding no other alternative the plaintiff who is the own maternal uncle of the defendant offered the defendant and his wife for construction of a building at the cost of the defendant and it was allegedly agreed that the defendant and his wife will construct the said one storied building at their own cost and will reside therein permanently generation after generation. The defendant also alleged that the parties had agreed that the plaintiff will never evict the defendant from the entire ground floor including mezzanine floor. The defendant also alleged that there would be a construction of one garage for the defendant and one space for garage would be kept vacant where the plaintiff or his son may construct his garage, if necessary, in future. The defendant further alleged that it was also agreed by and between the parties that the son of the plaintiff would be entitled to make construction of another floor at his own cost and will stay on such floor, that is, first floor without disturbing the defendant. The defendant alleged that the defendant and his wife constructed one storied building including mezzanine floor by spending about Rs. 9,00,000/- (Rupees Nine Lakhs). The defendant's case was that in view of the aforesaid agreement between the parties the defendant and his wife constructed the one storied building on the said land at their own cost and thereafter the defendant with his wife are living in the said house. The defendant denied the material allegations made in the plaint.;