- (1.) This second appeal is of the defendant and is directed against the judgment and decree dated 12th June, 1998 passed in Title Appeal No. 48 of 1996 by the leariied Additional District Judge, 7th Court, Alipore decreeing the suit after reversal of the judgment and decree of dismissal dated 22nd April, 1995 passed by the learned Civil Judge (Senior Division), 3rd Court at Alipore in Title Suit No.106 of 1983. The facts are these:
(2.) The premises No. 69, Hazra Road measuring about of 11 cottahs 10 chittacks 4 sq. ft. belonged to Corporation of Calcutta which transferred the same to Dr. Monmotha Nath Chatterjee by a deed of conveyance on 21st December, 1911. Monmotha Nath Chatterjee died on 25th April, 1939 leaving his will and testament dated 23rd April, 1939. His heirs are Krishna Das (son), Hrishikesh (son), Monindra Lal Mukherjee (predeceased daughter's son) and two other daughters,namely, Giribala and Shyama Sundari. Krishna Das , Hrishikesh and Monindra Lal were made executors of the will and they obtained probate from the High Court of the will on 14th August, 1939. Giribala Devi and Shyama Sundari Devi filed a suit being No. 996 of 1943 for removal of executors and for appointment of the Administrator General of Bengal as receiver. On 13th August, 1943 the High Court appointed the Administrator General of Bengal as receiver in respect of the properties left by the testator including the properties being 69, Hazra Road. Then, Krishna and Hrishikesh filed a suit being No. 1198 of 1943 in the High Court against Monindra for administration of properties and for construction of the will. On 15th May, 1945 the High Court after consolidation of the above two suits passed a preliminary decree for partition and directed sale of the residuary estate left by the testator. On 15th May, 1946 a preliminary decree was passed on compromise and one Mr. Beni Madhav Chatterjee, Advocate of this Court was appointed Commissioner for partition with powers upon him to make partition and division of the residuary estate into six equal parts and to sell the same by public auction to the highest bidder. Then on 6th February, 1948 an order was passed further by the High Court to the effect that the executors to the will and the Commissioner so appointed by the Court would jointly execute and register sale deeds in respect of the immovable properties, that is residuary estate in terms of the decree. Then an auction sale was conducted pursuant to which the original plaintiff of this suit Surya Sekhar Chatterjee, his brother Purnendu SekharChatterjee and Chandra Sekhar Chatterjee purchased the entire eastern portion of the premises No.69.Hazra Road, measuring 4 cottahs 13 chittacks and 20 sq.ft. which was referred to in the sale deed as Lot-B.Chandra Sekhar died on 15th June, 1949 leaving widow Provati and a minor son Shasanka Sekhar. A deed of conveyance in respect of the eastern portion measuring 4 cottahs 13 chittacks 20 sq.ft. of land was executed by the executors of the will and the Advocate commissioner in favour of Surya Sekhar Chatterjee, Purnendu Chatterjee, Provati Devi, for self and minor son Shasanka Sekhar Chatterjee on 9th June,1950. Then this Chatterjee family effected partition of their properties including this property by registered deed of partition on 28th January, 1957 by virtue of which the entire 4 cottahs 13 chittacks 20 sq.ft. which is Lot-B was allotted to Surya Sekhar alone. Other non-suit properties were allotted to other co-sharers.Now, Surya Sekhar raised construction covering an area of 2 cottahs 12 chittacks 24 sq. ft. within his purchased land and within the partitioned land measuring 4 cottahs 13 chittacks 20 sq. ft, a portion thereof measuring 2 cottahs 41 sq.ft. out of said 4 cottachs 13 chittacks 20 sq.ft. was left vacant in the southern part of the said eastern portion of the said premises, in the northern part of the eastern portion measuring 2 cottahs 12 chittacks 24 sq. ft. where constructions were raised there were certain tenants.ln terms of the auction sale another deed of conveyance was executed by Krishna Das, Hrishikesh and Monindra Lal Mukherjee of the one part and the Commissioner Mr. Beni Madhav of the other part in favour of Hrishikesh Chatterjee in respect of Lot-A which was the western portion of 69,Hazra Road measuring 4 cottahs 14 chittacks 4 sq.ft.The present defendants are said to be tenants under Hrishikesh in respect of a portion of the Lot- A which is western part of the premises No.69, Hazra Road and which is not the suit property. Further Hrishikesh Charterjee died leaving widow Rama Chatterjee, son Arpan Chatterjee and daughter Arpita Chatterjee. Hrishikesh died on 4th December, 1957. Now Rama, Arpan and Arpita, the heirs of Hrishikesh sold 2 cottahs 10 chittacks 3 sq. ft. to one Sushil Kr. Das out of their 4 cottahs 14 chittacks 4 sq.ft. on 21.11.1979. Now the plaint case is that the defendants who were tenants under Hrishikesh in respect of a portions of the Lot-A which is western part of the premises No. 69, Hazra Road encroached upon the plaintiff's land measuring. 2 cottahs 41 sq. ft. being a part of 4 cottahs 13 chittacks 20 sq.ft. of land in the eastern half or Lot-B and this encroached area is to the southern part of the eastern portion premises abutting Sevak Baidya Street, and not only that, the defendants also encroached upon some portions of premises of 2/1 Sevak Baidya Street in respect of which the owners of the said 2/1, Sevak Baidya Street instituted a suit against the defendants. The plaintiff in course of his employment was out of the town of Calcutta and having come from Andamans he found that the defendant had demolished the boundary wall in the western part and encroached upon the above area of 2 cottahs 41 sq.ft. of land in the eastern portion in which the defendants are rank trespassers. Therefore, the plainitff Surya Sekhar instituted the suit for decree for khas possession of the aforesaid area of the land and for certain other consequential reliefs.
(3.) The suit was instituted on 3rd May, 1982 and a few days after institution of the suit Surya Sekhar sold his entire 4 cottahs 13 chittacks 20 sq. ft. of land, inclusive 6f the suit property, to Raj Kr. Das, Sukumar Das and Kali Kr. Das, the added plaintiffs. Surya Sekhar died sometime after he himself had given evidence as P.W.1 before the learned trial Court. And his heirs also have been substituted, although they did not claim to have any interest in the property because of the transfer effected by Surya Sekhar Chatterjee to the aforesaid three persons on 12th May, 1982.;