- (1.) This is an appeal by the defendant, against the appellant judgment and decree of reversal decreeing the plaintiffs' suit for declaration of title, and khas possession of the suit land and after ejecting the defendant therefrom, removal of unlawful constructions set up by the defendant on the suit land, permanent injunction restraining the defendant from entering into any portion of the suit land, mesne profits and other reliefs.
(2.) The case of the plaintiffs is as follows: (a) The plaintiff No. 1 is the owner of Moujas Kulti and Kendua in the district of Burdwan on the basis of settlement taken by its predecessor's in interest from the Secretary of State for India in Council for a term of 999 years of establishing and running its iron works. The iron works since established in pursuance thereof are known as Kulti Works. (b) By indenture dated November 8, 1924, (certified copy marked Ext. 1) the plaintiff No. 1 took another lease for 999 year of 54.03 acres of land within Mouja Kulti and Kuldihi from Maharaja Sir Manindra Chandra Nandi of Cossimbazar at an annual rent of Rules. 2,000/- only. The suit land which is comprised within C.S. Plot No. 1269, Khatian No. 1 of Mouja Kulti measuring 41'x13'=533 sq.ft. is included within the said demised land. (c) By virtue of the aforesaid settlement, the plaintiffs had been in possession of the said C.S. Plot No. 1269 for their Kulti Works publicity, openly and as of right since the said date, and, apart from its positive and substantial title, acquired indefeasible title to the said plot through adverse possession and prescription. (d) The plaintiff No. 1, the Bengal Iron I Ltd. went into voluntary liquidation on December 2, 1936, and pursuant to the scheme of arrangement Mills Findley Anderson is one of the joint liquidators of the said company with joint and several powers to act on behalf of the said company. (e) Under the terms of the said scheme, the plaintiff No. 1 was to transfer the whole of its undertaking, properties and assets to the plaintiff No.2, Indian Iron and Steel I Ltd. Though no format deed of transfer has been executed, the plaintiff No. 2 has been given possession of the properties of the said company including the suit land and has been running and conducting the said Kulti Works. (f) The defendant has never any right, title or interest in the suit land which belonged to the plaintiffs by virtue of their aforesaid title and possession. (g) By another indenture dated July 30, 1941, [certified copy marked Ext. 1(a)] made between the Maharaja of Cossimbazar and the plaintiffs Nos. 1 and 2, while reciting the taking over of the demised properties and assets of the plaintiff No. 1 as aforesaid by the plaintiff No. 2, the Maharaja of Cossimbazar gave consent to various transfer made by the said companies and recorded an abatement of annual rent to 1992/11/6 in consideration of the surrender of 20 acres of land of Dag No. 405 Mouja Kuldihi by the plaintiffs. (h) The defendant holds a part of C. S. Plot No. 405, Mouja Kuldihi lying to the contiguous east of the suit land. Taking advantage of the contiguity of the suit land with the defendant's land the defendant fraudulently and clandestinely encroached upon and trespassed into a portion of the suit land mentioned in schedule to the plaint on or about July, 1956. The plaintiffs at once protested against the wrongful act of the defendant calling upon him to vacate the suit land. The defendant promised to vacate the land if the encroached land was found to be within the C.S. Plot No. 1269, but thereafter though the plaintiffs insisted for a joint survey, the defendant deferred the same on some pretext or other. (i) The defendant on March 12, 1957, started constructing pucca compound walls round the encroached suit land and when the plaintiffs protested by giving notices, no head was paid and the defendant proceeded with the erection of the boundary walls in haste. The plaintiffs, in the circumstances, instituted the suit on March 18, 1957, in the Second Court of the Munsif at Asansol, claiming the aforesaid reliefs and the suit was registered as Title Suit No. 39 of 1957.
(3.) The defendant contested the suit and filed a written statement on June 10, 1957, denying the material allegations made in the plaint. It was specifically denied that the plaintiff encroached upon the C.S. Plot No. 1269 as and in the manner alleged in the plaint. The defendant contained that the fencing was on his land within C.S. Plot No. 405, Mouja Kuldihi and was in existence for the last 30 years alongwith his possession of the said land. The defendant denied that he ever trespassed upon the plaintiffs' land at any time. The defendant's request for a joint survey was not complied with. It was further stated that the defendant was a monthly tenant under the Maharaja of Cossibazar in respect of land of Block No. 3 within C. S. Plot No. 405, Mouja Kuldihi and has been in possession thereof alongwith the adjoining fenced land on the east by growing vegetables for over 30 years. On December 15, 1950,the defendant took a permanent settlement of the land of his monthly tenancy through a registered kabuliyat and has been continuing with his possession as before, openly, publicly, as of right and continuously for over 12 years prior to institution of suit. The defendant claimed that he has, apart from his title, acquired independent title by adverse possession. The defendant further claimed that he merely replaced the bamboo and rollah fencing by a brick built wall, which was completed long before the institution of the suit. It was further contended that the plaintiffs have no locus standi to institute the suit. The suit in the premises, it was submitted, was liable to be dismissed with compensatory costs.;