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2011 DIGILAW 317 (CAL)

Ambuj Biswas v. Sudhangshu Dubey

2011-03-07

TAPAN KUMAR DUTT

body2011
JUDGMENT : TAPAN KUMAR DUTT, J. This Court has heard the learned Advocates for respective parties. The facts of the case, briefly, are as follows: The plaintiff filed Title Suit No. 38 of 1998 against the defendant and the said suit was placed before the learned Civil Judge (Junior Division) 1st Court at Bankura. The plaintiffs, claiming to be the owners of the suit property by virtue of purchase by registered deeds dated 24.10.1979 and 13.6.1980, alleged that the defendant requested the plaintiffs for grant of a licence in respect of the suit property for a temporary period and the defendant was referred to the plaintiffs by one Manindra Das, a relative of the plaintiffs. The plaintiffs alleged that the plaintiffs, subsequently, needed the suit property and served a notice to quit upon the defendant but the defendant did not vacate the suit property and, hence, the said suit was filed for evicting the defendant from the suit property. The defendant contested the said suit by filing written statement and denying the material allegations made in the plaint. The defendant denied the allegation of grant of licence and claimed to have acquired title in the suit property by way of adverse possession and has been residing in the suit property for more than twelve years since 1983. The defendant’s case was that the suit property was originally owned by one Brinda Dasi in 10 annas share and the remaining 6 annas share vested in the State. The defence case was that in the vested land the defendant installed the idols of Kalimata and Mansamata and a committee which was constituted for the pujas of the said deities had appointed the defendant as a priest for the said puja. The defence case was that the said committee made arrangements for accomodation of the defendant and his family in the suit property. The defendant alleged that it is not clear from whom the plaintiffs’ vendor got the suit property. The said suit came up for hearing when evidence was adduced on behalf of the parties. The learned Trial Court by judgment and decree dated 27.6.2003 decreed the said suit on contest and directed the defendant to quit and vacate the suit property within a stipulated time, failing which the plaintiffs were given liberty to execute the decree. The said suit came up for hearing when evidence was adduced on behalf of the parties. The learned Trial Court by judgment and decree dated 27.6.2003 decreed the said suit on contest and directed the defendant to quit and vacate the suit property within a stipulated time, failing which the plaintiffs were given liberty to execute the decree. The finding of the learned Trial Court was to the effect that the defendant at first took the plea that there might be a presumption of landlord and tenant relationship between the parties but subsequently the written statement was amended by deleting the said pleading and the defendant has stated in the written statement that in order to avoid the provisions of West Bengal Premises Tenancy Act the plaintiffs have filed the said suit. The learned Trial Court in its judgment observed that the defendant was puzzled about his defence because his earlier motive was to take a plea of tenancy but subsequently he changed his mind and took the plea of adverse possession and after that the defendant incorporated another story by way of amendment of the written statement that 6 annas share in the suit property had vested in the State. The learned Trial Court found that the defendant has not mentioned any specific date as to when he came into possession of the suit property and he has not filed any cogent document or independent corroborative evidence to substantiate the claim of adverse possession. The learned Trial Court found that the defendant has failed to establish the case of adverse possession. The learned Trial Court noted the fact that even though the defendant had pleaded adverse possession the defendant also stated in the written statement that the said puja committee had appointed him as a priest and had accomodated him in the suit premises. The learned Trial Court found that the plaintiffs have proved their purchase deeds which indicate that the suit property is well-demarcated and the plaintiffs have purchased the land excluding the portion which has been acquired by the ‘Board’ in respect of plot No.600 for creating a pathway. The learned Trial Court found that the defendant failed to prove the allegation that 6 annas share in the suit property had vested in the State. The learned Trial Court found that the defendant failed to prove the allegation that 6 annas share in the suit property had vested in the State. The learned Trial Court observed that even if it is assumed for the sake of argument that a portion of the suit property had vested in the State the defendant cannot claim ownership in such property unless the Government allots the vested land to the defendant. The learned Trial Court found that admittedly the suit property is not a debuttor property and as such the story of deity, shebaitship, formation of a committee is bogus. The learned Trial Court found that the defendant did not file any paper to show in support of his claim that he was appointed as a shebait or that the 6 annas share in the suit property had vested in the State. The learned Trial Court recorded that the defendant stated in his evidence that he does not know whether Basanta Ghosh is the son of Brinda Dasi or whether Rabi Lochan Ghosh is the son of Basanta Ghosh. The learned Trial Court further noted that D.W.1 stated in evidence that he has no paper in support of his alleged ownership of the suit property or the alleged committee’s ownership of the suit property or that a portion of the suit property had vested in the State. The learned Trial Court found that the defendant stated in his evidence that he does not know whether or not the plaintiffs are the owners or possessors of the suit property and that he is residing in the vested land and not in the land owned by the plaintiffs and/or in the suit property. The learned Trial Court considered the evidence of D.W.2 and D.W.4 which reveals that the said witnesses are not aware of the particulars of the suit property and/or its ownership. The learned Trial Court considered the evidence of D.W.2 and D.W.4 which reveals that the said witnesses are not aware of the particulars of the suit property and/or its ownership. The learned Trial Court considered the evidence of plaintiff No.1 who stated in cross-examination that he purchased vacant land in the year 1979-80 and completed the construction in 1986 and licence was granted to the defendant in presence of Dayamoy Banerjee, Bejoy Gorai and Manindra Das and out of them Dayamoy Banerjee and Bijoy Garai have deposed in the suit as P.W.3 and P.W.4 to the effect that on their request the plaintiffs granted licence to the defendant in respect of the suit property when the room of the defendant was demolished due to rain and that there is no deity like Goddess Kali or Manashamata in the suit property nor there is any committee in respect of such deities. The learned Trial Court found that the status of the defendant was no better than a licensee and if taking advantage of such licence the defendant has installed some images of some deities within or outside the suit property with the help of some of his henchmen that does not mean that the suit property has become debuttor or as a shebait of the deities the defendant has become the owner of the suit property. The Learned Trial Court found that the plaintiffs have right, title and interest in the suit property and the defendant has none and the status of the defendant can be certainly presumed to be that of a licensee; accordingly, the defendant is liable to be evicted. The defendant preferred Title Appeal 57 of 2003 challenging the learned Trial Court’s judgment and decree and such title appeal was placed before the learned Additional District Judge, 2nd Court, Bankura. The learned Lower Appellate Court allowed the said title appeal and dismissed the suit by setting aside the learned Trial Court’s judgment and decree. The learned Lower Appellate Court found substance in the argument made on behalf of the defendant that the plaintiff failed to prove that the plaintiffs’ vendor had acquired exclusive right, title and interest in respect of the suit property and, therefore, the Court cannot come to the conclusion that the plaintiff has acquired exclusive right, title and interest in the suit property. The learned Lower Appellate Court found from the Municipal sanctioned plan produced before the Court that the Bankura Municipality sanctioned the plan in the year 1991 and, therefore, the construction must have been made after 1991. The learned Lower Appellate Court found that since the suit-land was purchased by the plaintiffs in 1979-80 there was no room and/or construction on the suitland between 1980 and 1991 and, therefore, the evidence regarding construction of the boundary wall within the suit plot by the plaintiff and the plaintiffs’ claim that the plaintiffs constructed the house is false and fabricated. The learned Lower Appellate Court observed that there is no evidence on record to show on which date and in which year and in whose presence licence was granted by the plaintiff to the defendant but it has been proved that the date on which the suit land was purchased by the plaintiff it was vacant; therefore, if any licence had been granted to the defendant and, for the sake of argument, it is accepted that the defendant got possession of the suit-land and constructed a house on the said land then in that event as per Section 60(B) of the Easement Act such licence cannot be revoked. The learned Lower Appellate Court found that the plaintiff never inducted the defendant as a licensee and the defendant was neither a licensee nor a tenant under the plaintiffs at any point of time. The learned Lower Appellate Court observed that Manindra Das was the best person to say regarding the licence but Manindra Das did not come to depose. The learned Lower Appellate Court laid emphasis on the fact that the plaintiffs’ witness has failed to say in which year and/or on which date the licence was granted in favour of the defendant and the plaintiff No.1 has admitted that there is a temple of Kalimata and Manasamata on the suit property. The learned Lower Appellate Court observed that if P.W.3 was present at the time of grant of licence in favour of the defendant, the plaintiffs ought to have stated that in the plaint and this means that when Manindra Das could not be purchased by the plaintiffs the P.W.3 was purchased by the plaintiffs. The learned Lower Appellate Court has disbelieved the evidence of P.W.3 and P.W.4 as they have denied the existence of Kalimata and Manasamata idols in the temple. The learned Lower Appellate Court has disbelieved the evidence of P.W.3 and P.W.4 as they have denied the existence of Kalimata and Manasamata idols in the temple. According to the learned Lower Appellate Court the entire story, as made in the plaint, is false and fabricated but the evidence of the defendant should be believed in view of the fact that he alone has been possessing the suit property by constructing a house and installing the deities of Kalimata and Manasamata in the temple and performing the daily puja. It appears from a reading of the impugned judgment that learned Lower Appellate Court was not satisfied with plaintiffs’ claim of exclusive title in the suit property inasmuch as the plaintiffs failed to prove that their vendor had exclusive title in the suit property. The Learned Lower Appellate Court found that there was no relationship of licensor and licensee between the parties and a portion of the suit plot is the acquired land of the Government concerned and that the defendant has been possessing the suit property since 1975-76 by constructing a house and installing idols of Goddesses Kalimata and Mansamata in the suit property. The Learned Lower Appellate Court held that the suit as framed is not maintainable in the eye of law and is barred under Section 34 of Specific Relief Act and the plaintiffs’ right, title and interest over the suit property have not been well-established. The learned Advocate for the appellants submitted that the sale deeds by which the plaintiffs had purchased the suit property were never challenged by the defendant and the learned Lower Appellate Court erroneously went into the question as to whether or not the plaintiffs’ vendor had the proper title to sell the suit property to the plaintiffs. He submitted that the learned Lower Appellate Court misdirected itself in going into the question whether the plaintiffs’ vendor had acquired exclusive right, title and interest in the suit property when the defendant himself did not challenge the plaintiffs’ title deeds. According to the said learned Advocate when the learned Lower Appellate Court had proceeded on the basis that the plaintiffs’ vendor was a co-sharer in respect of the suit property, then in that case, the learned Lower Appellate Court should have come to the conclusion that even a co-sharer can bring proceedings for eviction against a licensee. According to the said learned Advocate when the learned Lower Appellate Court had proceeded on the basis that the plaintiffs’ vendor was a co-sharer in respect of the suit property, then in that case, the learned Lower Appellate Court should have come to the conclusion that even a co-sharer can bring proceedings for eviction against a licensee. The said learned Advocate submitted that the defendant had pleaded that he was not aware of the plaintiffs’ title deeds but left it to the plaintiffs to prove the same and the plaintiffs have proved their title deeds in accordance with law. The learned Advocate for the appellants submitted that Dayamoy Banerjee, Bejoy Gorai who were also present at the time when licence was granted to the defendant had come to depose and the plaintiffs’ witness stated that there is no public deity like Goddess Kalimata or Goddess Manasamata over the suit property nor there is a committee in respect of any deity over the suit property and that the plaintiffs had made constructions and boundary wall in the suit property. The said learned Advocate submitted that it will appear from the evidence on record that the learned Lower Appellate Court made a wrong finding that the defendant had made constructions in the suit property in the manner in which it has been found by the learned Lower Appellate Court. The said learned Advocate submitted that the defendant had failed to prove the allegation of vesting of the suit property or any part thereof. He has also submitted that the defendant has failed to bring anything on record in support of his allegation of being appointed as a priest and/or a shebait. He also submitted that the defendant also could not prove that he has any ownership in respect of the suit property. The said learned Advocate submitted that from the materials on record it will appear that there was no relationship of landlord and tenant or lessor and lessee in between the parties in respect of the suit property. The said learned Advocate for the appellants cited a decision reported at 1995 SUPP (3) SCC 266 (Pr. The said learned Advocate submitted that from the materials on record it will appear that there was no relationship of landlord and tenant or lessor and lessee in between the parties in respect of the suit property. The said learned Advocate for the appellants cited a decision reported at 1995 SUPP (3) SCC 266 (Pr. Shamboo Nath Tikoo And Others -V-S. Gian Singh And Others) in support of his contention that unless the person who claims to be in adverse possession makes it known to the owner of the property concerned about the former’s hostile declaration in respect of the property concerned he cannot successfully claim to have acquired a title of adverse possession. He cited another judgment reported at 1993(3) SCC 459 (State of Punjab and Others -V- Brigadier Sukhjit Singh) in support of his contention that permissive possession, however long, cannot by itself be said to have become hostile by a long lapse of time and the mere fact that a licence has been continuing for a long period of time is of no consequence. The said learned Advocate cited another decision reported at 1994(6) SCC 591 (Thakur Kishan Singh (Dead)-V-Arvind Kumar) in support of his contention that mere possession for howsoever length of time does not result in converting a permissive possession into an adverse possession. He submitted that a permissive possession to have become an adverse possession must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. He cited a decision reported at 2007(3) SCC 114 (M.Durai -V- Muthu And Others) in support of his contention that once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession. He submitted that in the instant case that the plaintiffs have proved their title by proving the deeds of sale in their favour. He submitted that in the instant case that the plaintiffs have proved their title by proving the deeds of sale in their favour. He cited another unreported judgement dated 6.8.10 passed by this Court in S.A. 540 of 2007 (Sri Madhusudan Bhattacharjee-V- Smt. Madhabi Das) in support of his contention that the burden of proof lies upon the party who substantially asserts the affirmative of the issue and in the instant case since the defendant has alleged that he has perfected his title in the suit property by way of adverse possession, the said defendant was duty bound under the law to prove the same. The said learned Advocate cited another decision reported at 2000(1) SCC 712 (B.K. Narayana Pillai-V- Parameswaran Pillai And Another) in support of his submission that inconsistent and contradictory allegations in negation to the admitted position of fact or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The learned Trial Court in the instant case has recorded in its judgment the manner in which the defendant had amended his pleadings by taking contradictory stands. Another decision cited by the learned Advocate for the appellants is the one reported at 1995(6) SCC 523 (P.Periasami(Dead) By Lrs.-V- P. Periathambi And Others) in support of his submission that since the defendant has claimed adverse possession against the plaintiff, the defendant has automatically admitted that the plaintiff is the owner of the suit property. He cited another decision reported at 1995 SUPP (4) SCC 570 (A.S. Vidyasagar-V-S.Karunanandam) in support of his contention that unless there is proper evidence on record to support the plea of openness, hostility and notoriety which would go establish an adverse possession, a Court cannot come to any finding that a person claiming adverse possession has perfected its title by such possession. He cited another judgment reported at 2001(3) SCC 179 (Santosh Hazari –V- Purushottam Tiwari (Deceased) By Lrs.) in support of his contention that the learned Lower Appellate Court did not discharge the duties cast upon a First Appellate Court while reversing the judgment of the learned Trial Court. The learned Advocate for the respondent at the very outset submitted that he is not pressing the point of adverse possession and as such he has not made any argument in support of the point of adverse possession. The learned Advocate for the respondent at the very outset submitted that he is not pressing the point of adverse possession and as such he has not made any argument in support of the point of adverse possession. The said learned Advocate submitted that the defendant/respondent is residing in a vested portion of the property and as such the plaintiffs cannot claim recovery of possession of a vested property. He submitted that the vendor of the plaintiffs could not have sold any demarcated area of the property since the property was unpartitioned. He submitted that no reliance can be placed upon the sale deeds in favour of the plaintiffs. He referred to Section 14 of the West Bengal Land Reforms Act. He also submitted that the sale deeds do not indicate which particular portion of the property was sold to the plaintiffs. He further submitted that the sanctioned plan produced by the plaintiffs shows it is of the year 1991. Therefore, the allegation that the plaintiffs have made the construction in 1986 is not correct. The learned Advocate for the respondent submitted that the schedule given in the plaint is vague as it does not contain any description of the structures. He submitted that the defendant has been in possession of the property where he is residing since before the plaintiffs’ purchase of the suit property but it has not been ascertained whether or not the defendant is really occupying the property purchased by the plaintiffs or any portion thereof. According to the said learned Advocate no plan is annexed to the sale deeds in favour of the plaintiffs and this matter should be remanded back to any of the Courts below to find out which particular property the defendant is occupying and whether it forms any part of or whole of the property purchased by the plaintiffs. The said learned Advocate submitted that the materials on record indicate that an irrevocable licence was granted in favour of the defendant. He cited a decision reported at 1987(2) SCC 555 (Ram Sarup Gupta (Dead) By Lrs.-V- Bishun Narain Inter College). In the said reported case licence was granted to a school in respect of the building and the land attached to it for the purpose of imparting education and the school in furtherance of that purpose constructed additional buildings and also incurred expenses for extensive repair in the existing buildings. In the said reported case licence was granted to a school in respect of the building and the land attached to it for the purpose of imparting education and the school in furtherance of that purpose constructed additional buildings and also incurred expenses for extensive repair in the existing buildings. The person who granted the licence never objected to such acts of the school and also did not retain any right to revoke the licence. The Hon’ble Court held that Section 60(g) of the Easements Act would be applicable in the said case and the licence granted to the school could not be revoked so long the school continues to carry on the purpose for which the licence was granted. The learned Advocate for the plaintiffs/appellants has submitted that no issue was ever raised with regard to the identity of the suit property and the identity of the suit property was not disputed in the written statement. Having heard the learned Advocates for the respective parties and having considered the materials on record, it appears to this Court that the learned Lower Appellate Court ran into error by going into the question as to whether or not the plaintiffs’ vendor had acquired exclusive right, title and interest in respect of the suit property and, consequently, whether or not the plaintiffs had exclusive right, title and interest in the suit property. The defendant/respondent took the stand in the written statement that he was not in a position to dispute the plaintiffs’ title deeds and plaintiffs should prove their purchase of the suit property. The plaintiffs proved their title deeds in evidence and the learned Trial Court has found that the plaintiffs have proved their title in respect of the land and constructions comprised in the suit property. The learned Trial Court has also found that the title deeds in favour of the plaintiffs have not been challenged by the defendant and the defendant being a licensee had no right to challenge the same. Even if the learned Trial Court was not satisfied with the plaintiffs’ claim of exclusive title to the suit property there cannot be any dispute that the plaintiffs had, at least, undivided share in the suit property. Since the defendant had claimed adverse possession against the plaintiffs it shows that the defendant has admitted that the plaintiff was the owner of the suit property. Since the defendant had claimed adverse possession against the plaintiffs it shows that the defendant has admitted that the plaintiff was the owner of the suit property. The learned Advocate for the appellants has cited the case of Periasami’s case (supra) in this regard. That apart, even if, for the sake of argument, it is presumed that the plaintiffs happen to be co-sharers in the suit property they are still entitled to bring proceedings for eviction of a licensee in the said property, particularly, when the alleged other co-sharers have not taken any step for opposing the eviction proceedings before any appropriate forum. The defendant in his written statement has taken the stand that he is occupying the suit property since 1983 by denying the plaintiffs’ right, title and interest in the suit property. Therefore, the defendant admits that, at least, the plaintiff had title in the suit property. The learned Trial Court has clearly found that the defendant has miserably failed to prove that any part of the suit property has vested in the State. The learned Trial Court also found that the defendant has stated in his evidence that he has no paper to show that he was ever appointed as a shebait by any puja committee or that the alleged committee had given the suit property to the defendant. The learned Trial Court also recorded the evidence of the defendant D.W.1 to the effect that he has no paper in support of his alleged ownership of the suit property. The learned Trial Court has also recorded the evidence of D.W.4 to the effect that he does not know who was the original owner of the suit property or who are the co-sharers in respect of the suit property. The question whether the construction made by the plaintiffs in the suit property was done after the obtaining of the sanctioned plan or before the obtaining of the sanctioned plan from the Municipal authority concerned is not material for the purpose of deciding the eviction suit. Even if the plaintiffs had constructed illegally, he could still bring a suit for eviction of a licensee in respect of such illegal construction. A licensee cannot take any defence in the suit for eviction that the construction made by the plaintiff was not in accordance with the law, and, therefore, the licensee is not liable to be evicted. Even if the plaintiffs had constructed illegally, he could still bring a suit for eviction of a licensee in respect of such illegal construction. A licensee cannot take any defence in the suit for eviction that the construction made by the plaintiff was not in accordance with the law, and, therefore, the licensee is not liable to be evicted. The learned Lower Appellate Court acted without any basis in coming to the finding that the defendant had made the constructions in the suit property. The sanctioned plan produced by the plaintiffs, at least, shows that the plaintiffs are the persons who had intended to make constructions in the suit property but the defendant has failed to show any document in support of the allegation that he had made construction in the suit property. The learned Lower Appellate Court erroneously held that Section 60(b) of the Easement Act is applicable in the facts of the instant case. The defendant could not prove successfully that he had made any construction in the suit property pursuant to the terms of the licence granted by the plaintiff. In any event, the defendant was interested to deny the allegation of licence pleaded by the plaintiff and on the contrary the defendant pleaded the adverse possession of the suit property. In such circumstances Section 60(b) of the Easement Act cannot be invoked. In Ram Sarup Gupta’s case (supra) a licence was granted to a school in respect of a certain property for the purpose of imparting education and the school in furtherance of that purpose constructed additional buildings and made extensive repair in the existing buildings and the person who granted such licence never objected to such acts of the school and also did not retain any right to revoke the licence. In such circumstances, the provisions of Section 60 (b) of the Easement Act was made applicable in the said reported case. In the instant case, the defendant has failed to prove that he had ever made constructions in the suit property. The learned Lower Appellate Court committed an error in being emphatic about the fact that Manindra Das did not come to depose when the other two persons who were present at the time of grant of licence by the plaintiffs to the defendant in respect of the suit property did come to depose as P.W.3 and P.W.4. The learned Lower Appellate Court committed an error in being emphatic about the fact that Manindra Das did not come to depose when the other two persons who were present at the time of grant of licence by the plaintiffs to the defendant in respect of the suit property did come to depose as P.W.3 and P.W.4. Even if the plaintiffs have failed to prove the exact date on which the defendant was granted licence in respect of the suit property the plaintiffs’ suit for eviction could not have been dismissed. The learned Lower Appellate Court, it appears, acted on surmises and conjectures while coming to a finding that the P.W.3 was purchased by the plaintiffs after the plaintiffs found that the said Manindra Nath could not be purchased. The defendant claimed that the certain puja committee had given licence to the defendant to occupy the suit property but the defendant has failed to prove that the alleged puja committee had any right, title and interest in the suit property or that the said alleged puja committee had granted licence in favour of the defendant. Even though the learned Advocate for the respondent did not wish to press the point of adverse possession it may be worthwhile to consider the reported cases cited by the learned Advocate for the appellants as already indicated above. The learned Advocate for the appellants cited the Brigadier Sukhjit Singh’s case (supra) while contending that permissive possession, however long, cannot by itself be said to have become hostile by a long lapse of time and the mere fact that a licence has been continuing for a long period of time is of no consequence. Even if there is any existing Kalimata and Manasamata in the suit property it cannot automatically mean that the defendant has acquired any title in the suit property but way of adverse possession. The defendant has failed to adduce any cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the plaintiffs. The decision rendered in Thakur Kishan Singh’s case (supra) may be seen. The submission of the learned Advocate for the respondent that vendor of the plaintiffs could not have sold any demarcated area of the property since the property was un partitioned does not carry much weight in view of the discussions made above. The decision rendered in Thakur Kishan Singh’s case (supra) may be seen. The submission of the learned Advocate for the respondent that vendor of the plaintiffs could not have sold any demarcated area of the property since the property was un partitioned does not carry much weight in view of the discussions made above. As already noted above, even if the plaintiffs are cosharers in the suit property they can still maintain a suit for eviction of a licensee in the suit property, particularly, when no other alleged co-sharer has taken any step before any appropriate forum to oppose the prayer for eviction. The said learned Advocate submitted that no reliance can be placed upon the sale deeds in favour of the plaintiffs but such submission without any substance as the plaintiffs have proved the said sale deeds in evidence in support of the title. The said learned Advocate tried to make some submission, as indicated above, with regard to the fact that the sanctioned plan produced by the plaintiffs was of the year 1991. But such submission of the said learned Advocate is also not of any substance since this Court is of the view, as indicated above, that the question whether the construction was made before obtaining of the sanctioned plan or after the obtaining of the sanctioned plan is not of much relevance in the present suit for eviction of a licensee. With regard to the allegation of vesting, as made by the defendant, there is already a finding by the learned Trial Court that the defendant has failed to prove that the suit property or any part of it had vested in the State. The learned Trial Court recorded in its judgment that the defendant did not produce any paper in support of the allegation of vesting. The defendant took the stand that he has been occupying the suit property for residence and the seba puja of the deties and as such the submission made by the learned Advocate for the respondent that the schedule given in the plant is vague as it does not contain any description of the constructions is without any substance. It appears, as already noted above, that the learned Advocate for the respondent raised a point with regard to the identity of the suit property but such point is purely a question of fact. It appears, as already noted above, that the learned Advocate for the respondent raised a point with regard to the identity of the suit property but such point is purely a question of fact. It appears from the materials on record, as also submitted by the learned Advocate for the appellants, that no issue was raised with regard to such point in the learned Courts below. It appears that the defendant never seriously raised any question with regard to the identity of the suit property and it would not be proper at this stage in second appeal to deal with such question of fact for the first time. It is difficult to appreciate as to why the learned Lower Appellate Court held that the suit property is not maintainable in the eye of law and is barred under Section 34 of the Specific Relief Act. No reason has been assigned by the learned Lower Appellate Court as to why it made the above findings. Such findings of the learned Lower Appellate Court are erroneous. In view of the discussions made above, this Court is of the view that the learned Lower Appellate Court erred in setting aside the judgment and decree passed by the learned Trial Court. This Court is of the view that the learned Trial Court was correct in holding that the plaintiffs have proved their title in respect of the suit property and the status of the defendant in the suit property was that of a licensee before the revocation of licence and the defendant is liable to be evicted from the suit property. In the aforesaid circumstances, the instant second appeal is allowed. The judgment and decreed dated 20th March, 2004 passed by the learned Additional District Judge, Second Court, Bankura in title appeal No. 57 of 2003 are set aside and the judgment and decree dated 27th June, 2003 passed by the learned Civil Judge (Junior Division), 1st Court, Bankura in title suit No. 38 of 1998 are restored. The aforesaid suit brought by the plaintiffs/appellants is decreed and the defendant/respondent is directed to quit and vacate the suit property within 90days from the date of this judgment failing which the plaintiffs will be at liberty to execute the decree in accordance with the law. There will, however, be no order as to costs.