A counterclaim for declaration of right, title, and interest in a suit property is barred by limitation if it is filed beyond the three-year limitation period prescribed by Article 56 of the Limitation Act, from the date of knowledge of the execution of the lease deed in favor of the plaintiff.

Toufique Uddin, J.

1. This appeal arose out of judgment and decree passed by the learned Additional District Judge, 1st Court, Siliguri in O.C. Appeal No. 19s of 1999 reversing the judgment and decree dated 16.9.1999 and 23.9.1999 respectively passed by the learned Civil Judge, (Sr. Division), Siliguri in O.C. Suit No. 16 of 1983.

2. In the background of this appeal the fact in a nutshell is that O.C. No. 16 of 1983 was filed for declaration of title, recovery of possession injunction and other consequential reliefs by the plaintiff one Smt. Hemaprova Basak W/o Late Binod Behari Basak against Bimal Kanti Basak & Others. She claimed that he is the absolute owner of the Schedule 'A' property and is in possession thereof as described better in the Schedule appended to the plaint along with the building and structures standing thereon. The plaintiff was allotted the suit land by the Relief and Rehabilitation Department of Govt. of W.B. vide Memo No. 2231/RRG dated 5.12.53 by the Deputy Commissioner, Darjeeling. She took possession of the suit land from the Govt. of W.B. and submitted the building plan to the Municipality for construction of the building thereon. The Municipality approved the plan on 4.8.54 and the plaintiff constructed the building after obtaining House Building loan. Thereafter, the plaintiff submitted a revised plan in 1957 and after the plan was approved, the plaintiff constructed second phase of the structure and his name was duly recorded in the Municipal Corporation, Siliguri as the exclusive owner. In 1975, the Govt. of W.B. executed a lease deed dated 1.11.75 for a period of 99 years in favour of the plaintiff in confirmation of the allotment already made and the said lease deed was registered on 3.11.75. The defendants are the brothers of the plaintiff's husband Binod Behari Basak and they had no independent accommodation and accordingly they were given permission by the plaintiff to reside on a portion of the said property. The defendants were also maintained by the plaintiff's husband and the defendant continued to be permissive possessor of the 'B' schedule property under the plaintiff. In the meantime, the plaintiff's family grew up and the plaintiff required further accommodation to accommodate her family. In 1983, she requested the defendants to vacate the property but they did not. The plaintiff issued a notice dated 4.2.83 to the defendants by a registered post revoking the license to occupy 'B' schedule property and directed the defendants to vacate but they did not comply.

3. The plaintiff amended the plaint particularly the prayer portion incorporating the prayers that the freehold Title deed allegedly granted in favour of the defendants are invalid, void and not binding upon the plaintiff. The Govt. of W.B. has no authority to ask the plaintiff to surrender the lease deed.

4. Initially, the suit was instituted by Smt. Hema Prova Basak, wife of late Binod Behari Basak against Bimal Kanti Basak and Benoy Kumar Basak. During the pendency of the suit Hema Prova Basak died and her legal heirs have been substituted by order dated 23.7.96. Similarly, Bimal Kanti Basak, defendant no. 1 died during the pendency of the suit and the legal heirs are substituted vide order dated 10.5.89.

5. The defendants contested the said suit by filing a combined written statement denying all material allegations inter-alia. The specific case of the defendants, however, is otherwise. They claimed that the plaintiff is not the owner of the suit land. The said land was allotted by the Government to the plaintiff along with other family members including the present defendants who came to Siliguri from the then East Pakistan in 1950 and the land was allotted in the name of plaintiff for the benefit of all family members. The husband of the family was the eldest brother of the defendants and he used to manage the affairs of the defendants at the relevant point of time. He worked as an employee in the office of the Depu