Bhaskar Bhattacharya, J. - (1.) This second appeal is at the instance of the defendants in a suit for declaration, recovery of possession and mandatory injunction and is directed against the judgment and decree dated July 31, 1982 passed by the learned Additional District Judge, 1st Court, Howrah in Title Appeal No. 282 of 1981 thereby reversing those dated September 25, 1981 passed by the learned Sub-ordinate Judge, 3rd Court, Howrah in Title Suit No. 12 of 1978.
(2.) The respondent No. 1 filed the aforesaid Title Suit for declaration that she appellants are licensees of the suit plot, for recovery of possession of the land in suit by demolishing and removing the improvised hut raised upon the suit land and for permanent injunction restraining the appellants from encroaching upon the 'Khas' land of the respondent No. 1 to the South-East of .04 acre of land of R.S. Plot No. 324. The ease made out by the respondent No. 1 in support of the aforesaid claim was as follows:- (a) The suit property originally belonged to the father of the respondent No. 1 who died leaving four eons including the plaintiff/respondent No. 1. In a suit for partition among the aforesaid heirs of the father of the plaintiff/respondent No. 1, the suit property has been allotted in favour of the plaintiff/respondent No. 1 and thus he has become absolute owner thereof. (b) The father of the respondent No. 1 gave licence to one Ratan Chandra Rakshit;, a local brick manufacturer who occupied the plot for the purpose of taking earth and water from the pond lying within the said plot and laying bricks on the ground for drying purpose. The appellant No. 2 being a labourer engaged by said Ratan Chandra Rakshit was permitted to stay in the suit property by raising an improvised hut with palm leaf cover on loose stack of bricks. The appellants have been living together in the said hut as licensee over the suit property. (c) Subsequently Ratan Chandra Rakshit gave up the licence but thereafter the appellant No. 2 continued in occupation. (d) Before the allotment of the suit property in favour of the respondent No. 1, a fire broke out in the locality and the hut constructed by appellant No. 2 was destroyed by fire. Thereafter the appellant No. 2 implored the then owners to allow her to continue in occupation and prayed for some more time until she could shift elsewhere. The then owners consented to the aforesaid proposal of the appellant No. 2 but subsequently the appellant No. 2 with the help of some people made an endeavour to erect additional structure by claiming adverse possession. (e) The said attempt was however foiled by a suo moto case initiated under Section 44(2a) of the West Bengal Estate Acquisition Act wherein the Revenue Officer after inquiry found that the appellants were staying in the suit property in permissive possession and accordingly the record was corrected. (f) Inspite of the said order the appellants having failed to vacate, a notice was issued upon the appellants through Lawyer but inspite of notice the appellant did not vacate. Hence the suit.
(3.) The aforesaid suit was contested by the appellants by filing joint written statement thereby denying the allegations made in the plaint and their defence were inter alia as follows:- (a) About 50 years ago the father of the appellant No. 1 and the husband of the appellant No. 2 viz. Antony Pantu Ekka came to Howrah in the suit locality for seeking a job and since then he started residing at the suit plot by constructing a hut on the land. The said predecessor of the appellants was an employee of Indian Machinery of Dasnagar, Howrah. (b) For the last 50 years the said Antony Pantu Ekka and thereafter the appellants are possessing the land as of their own right openly, peaceably and adversely against all including the plaintiff and his predecessor without any hindrance from any quarter. (c) The appellant No. 1 came there along with his father when he was a little boy and thereafter he got education and was also married there and four children were born on the suit property. (d) The appellants were paying Chowkldari Taxes and Anchal Panchayat Taxes with regard to the suit plot. The appellants and their family members are also voters of the locality and their names are enlisted in the voter list. (e) It was absolutely false that appellant No. 2 was inducted as licensee by Ratan Chandra Rakshit.;