Decided on February 09,1976



- (1.)This second appeal is by the defendants Nos. 2, 3 and 6 of the original suit.
(2.)The plaintiffs, two in number, filed the original suit against the six defendants for recovery of khas possession of the suit premises which is a house. Defendant no. 1 is the tenant. Previously plaintiff no. 1, Narayan filed a suit against the defendant no. 1 for eviction and in that suit it was found that there was no relationship of landlord and tenant as between Narayan and the defendant no. 1, Ramani Mohan. Subsequently, the ptaintiff no. 1 Narayan and the plaintiff no. 2 Sankaribala Dassi jointly filed the present suit for eviction of the defendants. In this suit, the material allegations were that originally Bipin and Madhav, two brothers were the owners of the house. Bipin possessed the southern portion and Madhav enjoyed the northern portion. Bipin left a will giving his properties to his wife Sushila. Sushila took the probate of the will and she gifted some of the properties she got from her husband to Paritosh Kumari, her sister and her share in the suit property in the southern portion was given to Paritosh Kumari's son Shyamapada by a will. After the death of Sushila, Shyamapada took the propate of the will and possessed the property. After his death, the proderty devolved upon his mother and ultimately upon his brother Ramapada Ghosh. The other half of the suit house which was possessed by Madhav Ghosh was also given to his wife Elokesi on the basis of a will. Elokesi possessed that property and made a gift of the same to one Shibaram Ghosh. Shibaram died leaving his wife Swetbarani and four sons including the plaintiff no. 1. In R.S. khatian the disputed portion of the property has been recorded in the name of Swetbarani alone. Paritosh Kumari while living in the southern portion of the suit house let out the upper story of that portion to different tenants. After her death, her son Ramapada inherited her properties and began to possess the suit property in his own right for more 12 years. Ramapada made a gift of his share of the suit property to his niece, Sankaribala, the plaintiff no. 2 and she transferred the property to plaintiff no. 1. Subsequently, as some doubt was raised regarding the legality of this transfer, both the plaintiffs have started the present action after the dismissal of the previous suit for evicting the defendant no. 1. The defendant no. 1 and the defendant Nos. 2, 3 and 6 contested the suit. Defendant no. 1 pleaded that he was a tenant under the predecessor in-interest of the defendant Nos. 2, 3 and 6 and challenged the title of the plaintiffs in the suit premises. The defendant Nos. 2, 3 and 6 also challenged the title of the plaintiffs.
(3.)The trial court on the evidence on record held that plaintiff no. 2 was entitled to get a decree for recovery of khas possession by evicting the defendants from the suit property which is in possession of the plaintiff no. 2. It was held by the trial court that Paritosh Kumari and Ramapada possessed the suit house in their own right and had undoubtedly acquired title by adverse possession and the allegations of transfer made in the plaint were not proved to be false or illegal. It has been specifically found by the trial court that none of the defendants had any title in the suit property and that the defendants have no right, title and interest in if. It was decided by the trial court that Sankaribala. the plaintiff no. 2 has right, title and interest to the suit house as claimed. All the defendants were declared to be trespassers and they were found to have colluded with one another. The right, title and interest of the plaintiff no. 2 was declared and she was directed to get khas possession by evicting the defendants. The plaintiff no. 2 was also found to be entitled to get mesne profits as indicated there.

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