JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This Second Appeal has been preferred against the judgment and decree dated 13.07.2012 by learned Civil Judge (Senior Division), Raiganj, Uttar Dinajpur in Title Appeal no. 12 of 2011. By the aforesaid impugned judgment learned Court below has affirmed the judgment and decree passed by learned Civil Judge (Junior Division), Raiganj in O.C. Suit No. 197 of 2008.

2. The appellant herein as plaintiff filed aforesaid suit for eviction against the respondent/defendant praying for decree for declaration as to his ownership in the suit property and also for recovery of kash possession by evicting the respondent herein from the suit property, upon revocation of permissive possession and for other reliefs.

3. Plaintiff’s case in a nutshell is that he is owner of 99 decimal of land by virtue of purchase through a registered Deed of Sale being no. 58 dated 31.12.2007 from one Tafar Mahammad who handed over khas possession and he remained in possession since purchase. The respondent no. 1/defendant no. 1 requested the plaintiff on 20.01.2008 for permitting him to reside on the suit land on condition that as and when the suit property will be required for the plaintiff/appellant, the respondent will quit and vacate the suit property. Considering the fact that she was working as a labour of a brick field and since she was in actual necessity of shelter, she was permitted by the appellant herein for erecting dwelling house in the suit property and the respondent no. 1 herein erected a temporary structure therein. Further case of the plaintiff is that the respondent nos. 2 and 3 are the son-in-law and daughter of respondent no. 1. The appellant on several occasions had requested the respondent no. 1 to quit and vacate the suit premises in favour of the appellant but the respondent no. 1 intentionally delayed to quit the same and on 15.09.2000 the respondent no. 1 flatly refused to quit and vacate the suit property, which compelled the plaintiff to file the said suit.

4. Defendant/Respondent no. 1 contested the said suit by filing written statement wherein she has categorially stated that the plaintiff has no cause of action to file the instant suit and he has filed the same supressing material fact. Her specific defence is that one Abdul Khalek was the R.S. recorded owner in respect of the suit property. The respondents were very poor having no residence of their own, permission was given bysaid Abdul Khalek for erecting their residence on the western side of the suit plot upon 5 decimal of land and since then they are possessing suit land. Thereafter one Nandalal Pardhoani purchased the said property and the defendant continued there possession in the property. At that time, the defendants were working in the brick field of aforesaid Nandalal. As per provision of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fisherman Act, 1975, the defendants have every right to reside upon the suit property. The defendants also pleaded that plaintiff has no right title or interest upon the said property and plaintiff never gave any permission to the defendant and they have filed the suit only to evict the defendants unlawfully and as such they have prayed for dismissal of the suit.

5. Learned Trial Court after considering the evidence adduced by the parties and the materials placed on record, came to a finding that the plaintiff had purchased the suit property in the year 2007 but the original owner of the suit property Abdul Khalek had permitted the defendant to construct there residential house in the suit property in the year 1960 and since then they are residing in the suit property. Moreover, R.S. Record of Rights stands in the name of original owner Abdul Khalek and plaintiff only filed Municipal Tax receipt, which cannot create title in favour of plaintiff. According to Trial court, when the plaintiff purchased the suit property then it is admitted position that the defendant