- (1.)This second appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Second Court, Hooghly in Title Appeal No. 262 of 1973, setting aside the judgment and decree of dismissal passed by the learned Munsif, first court, Serampore in Title Suit No. 73 of 1971 and decreeing the suit.
(2.)Plaintiff filed the suit for partition and injunction on a declaration of his alleged title to the suit land.
(3.)It was the case of the plaintiff that there was one "Baithakkhana" (parlor) consisting of two rooms situated in plot No. 1294 of Khatian No. 692 in Mouja Adan. There was a partition between plaintiff's predecessor Nibaran Hati, defendants 1 to 3, defendants 4 and 5, and defendants 7 to 10 in respect of their properties including the Baithakkhana mentioned in the Ka Schedule to the plaint. By that partition plaintiffs predecessor Nibaran Hati and defendants 4 and 5 got the western room of the said Baithakkhana. This partition was effected by a registered deed of partition D/-9-12-1944. By virtue of the sale deed D/-18-10-1954 defendant No. 4 sold their half share of the western room of the Baithakkhana to the pro forma defendant No. 6 and put her in the possession of the same. Thereafter by a deed of exchange D/-26-11-1967 pro forma defendant No. 6 exchanged her share in the western room of the Baithakkhana with the defendants Nos. 1 to 3. The defendant No. 1 felt inconvenience in residing at the rooms of his homestead which he got by an amicable partition with his co-sharers and he accordingly approached the plaintiffs and pro forma defendant No. 6 for allowing him to reside in the Kha scheduled room which is the suit room for 3 years and he was given the permission in the month Agrahayan, 1362 B.S. and on further request by defendant No. 1 the permissive possession was extended The defendant No. 1 broke a window on the eastern wall of the disputed western room of the Baithakkhana and caused damage and filled up the gaps with bricks on 28-2-1971. The permission given to the defendant No. 1 was thereafter revoked and the suit was filed for the relief as claimed.