Bhaskar Bhattacharya, J. - (1.) This second appeal is at the instance of defendants No. 2 and 3 in a suit for declaration and for recovery of possession and is directed against judgement and decree dated May 10, 1996 passed by the learned Additional District Judge, 9th Court, Alipore in Title Appeal No. 132 of 1993 thereby setting aside those dated August 29,1992 passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 6 of 1981.
(2.) The plaintiff/respondent No. 1 herein filed the aforesaid suit for declaration that the agreement for licence executed by and between defendant No. 1 in one hand and defendant Nos. 2 and 3 on the other is a fradulent one, invalid and inoperative and defendant Nos. 2 and 3 did not acquire any right, title and interest by the said agreement dated July 5, 1976. In the said suit the respondent No.l also prayed for decree for Khas possession of A Schedule property after eviction of the present appellants after a declaration that they are in unauthorised occupation of the suit premises on and from July, 5, 1976.
(3.) The case made out by the respondent No. 1 was as follows:- a) The suit property originally belonged to one Ashoke Kumar Bose, who died leaving a will thereby appointing his only son Ajoy Bose and his widow Madhuri as executor and executrix respectively. b) Ajoy Bose took probate of the said will. According to the terms of the Will executed by Ashoke Bose, on his death his widow Madhuri will get a life interest without any right of alienation of her life estate and after her death the property will devolve absolutely on the only son Ajoy subject to the right of residence of his elder sister and also right of maintenance out of the income of the estate of the testator under certain circumstances. Over and above, the expenses of education, residence and maintenance of other to unmarried sisters of Ajoy were directed to be borne from the estate either by Madhuri during her life time or by Ajoy when he would get the same as absolute owner. In the said will the executrix and executor were given right to raise money jointly in case of any emergency. c) By virtue of a deed of sale executed by Ajoy dated July 5, 1976 the respondent No. 1 acquired title to the said property. In the said deed Madhuri was made a confirming party. d) Although Madhun had no right to alienate the property whatsoever, she executed a purported agreement for licence in favour of defendant Nos. 2 and 3 thereby permitting them to carry on business in the suit property on the basis of leave and licence. e) After the purchase by the plaintiff the positions of defendant No. 2 and 3 were those of trespassers. The leave and licence granted by defendant No. 1 was void ab initio. f) The respondent No. 1 was therefore entitled to get the declaration and recovery of possession as prayed for.;