ASHIS KUMAR CHAKRABORTY,J. - (1.) This second appeal, at the instance of the defendant in an eviction suit, is directed against the judgment and decree dated February 11, 2007 passed by the learned Additional District Judge, 2nd Court at Nadia in Title Appeal No. 147 of 2006, upholding and confirming the judgment and decree for eviction dated August 17, 2006 passed by the learned Civil Judge, (Junior Division), 1st Court, Krishnagar, Nadia in T.S. No. 124 of 1998.
(2.) For the sake of convenience, the parties to this appeal are referred to by their array in the suit before the trial Court. The plaintiffs, as the sebaits of Sree Sree Raghunath Jew, Sree Sree Radhakanta/Radha Gobinda Jew, Sree Sree Jagganath Jew filed the eviction suit, before the learned Civil Judge, (Junior Division), 1st Court, Krishnagar at Nadia, claiming a decree for recovery of khas possession of the suit property, comprising one residential house over Holding No. Mahitosh Biswas Street, under Ward No. 22 of Krishnagar Municipality, P.S. Kotwali, District- Nadia (hereinafter referred to as "the suit property") by evicting the defendant therefrom and a decree for mesne profits. In the plaint it was the case of the plaintiffs that they had inducted the defendant as a tenant in respect of the suit property at, a rental of L 150/- per English Calendar month and the latter defaulted in payment of rent and he also damaged the suit property. By an agreement for sale dated December 11, 1994 between the plaintiffs and the defendant, the latter agreed to purchase the suit property but subsequently he failed to perform the said agreement for sale and did not pay the rent of the suit property. By a notice dated March 6, 1998 issued under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the Act of 1956"), the plaintiffs called upon the defendant to vacate the suit property within April 30, 1998, but in spite of the receipt of the said notice the latter failed and neglected to vacate the suit property and, as such, the plaintiffs filed the eviction suit seeking the defendant's eviction from the suit property. The defendant contested the eviction suit. He filed written statement, as well as the additional written statement denying all the material allegations made in the plaint. The defendant alleged that on March 15, 1975 when the plaintiffs requested him to hand over vacant possession of the suit property, he drove them out of the suit property in presence of many people namely, Sambhu Muhuri, Asit Ghosh, Buro Pramanik, Bhabani Pal Chowdhury and others and, as such, he claimed his title to the suit property against the plaintiffs through adverse possession. In support of the claim of his title through adverse possession, he alleged to have paid the municipal rates and taxes in respect of the suit property. Based on the pleadings of the respective parties the learned trial Judge framed the following issues: 1. Is the suit maintainable in its present form? 2. Whether the suit is barred by the principle of estoppel, waiver and acquiescence? 3. Whether the suit is barred under Section 34 of Specific Relief Act? 4. Whether the plaintiffs have right, title, interest in the suit property? 5. Whether the defendant is a tenant under the plaintiffs? 6. Whether the notice u/s 13(6) W.B.P.T. Act has duly been served? If so whether the said notice is legal and valid? 7. Whether the defendant is a defaulter in respect of payment of rent for the suit premises? 8. Whether the plaintiffs are entitled to get any decree as prayed for? 9. To what other relief, if any, plaintiffs are entitled?
(3.) On the above issues the parties went for trial of the suit. On behalf of the plaintiffs the plaintiff no. 3 adduced evidence as PW1 and the clerk of the D.S.R. office of Krishnagar, adduced evidence as PW-2. The plaintiffs produced the certified copy of 'Arpannama' (the Deed of Dedication) on August 05, 1899 executed by Late Kunja Behari Saha (Ext.-7) whereby he dedicated the suit property in favour of the deties Sree Sree Raghunath Jew and Sree Sree Radhakanta Jew (hereinafter referred to as "the said deities") and appointed his wife Kalidasi Dassi, since deceased as the sebait. He also proved the agreement for sale dated December 11, 1994 whereby the defendant agreed to purchase the suit property from the plaintiffs (Ext.- "1"), the land revenue records recording the names Amulya Baran Saha, Shasibhusan Saha, Sushil Krishna Saha, Nrisingha Prasad Saha, Basudeb Saha, the predecessors of the plaintiffs, in respect of the suit property (Ext-2), the relevant C.S. record, recording the name of Kalidasi Dassi in respect of the suit property (Ext.-3), the Assessment Register of the Krishnagar Municipality disclosing the suit property belonging to Sree Sree Radhakanta Jew and of the sebaits Amullya Charan Saha one of the predecessors of the plaintiffs (Ext.-6), the notice under Section 13(6) of the Act of 1956 dated March 06, 1998 (Ext-5) together with the postal acknowledgement due card (Ext-5/2) disclosing the receipt of the said notice by the defendant. On behalf of the defendant, he himself as D.W.-1 and one Tarak Chandra Sadhukhan, as D.W.-2 adduced evidence. The defendant disclosed and proved two municipal receipts in respect of the suit property as (Exts.-A and Ext.- A/1). However, none of the said persons namely, Sambhu Muhuri, Asit Ghosh, Buro Pramanik, Bhabani Pal Chowdhury, before whom the defendant claimed to have drove the plaintiffs out of the suit property on March 15, 1975 adduced evidence and in his cross-examination D.W.-2 stated that Sambhu Muhuri, Buro Pramanik were still alive. Though, in his affidavit for examination-in-chief D.W.-2 stated that the defendant drove the plaintiffs out of the suit property in his presence, but the defendant in his written statement did not mention the name of the D.W.-2 and the latter in his evidence stated that he cannot say the suit holding number and on what basis the defendant resides of the suit property.;