DHIREN MAJI Vs. NARAYONI GHOSH

JUDGEMENT

(1.) THIS Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record.

(2.) THE facts of the case, very briefly, are as follows : The plaintiff/respondent filed Title Suit No. 126 of 2004 against the defendants/appellants and such suit was placed before the learned Civil Judge (Junior Division),

(3.) THE learned Advocate appearing on behalf of the defendants/appellants submitted that the learned Trial Court committed a gross mistake by decreeing the suit in favour of the plaintiffs in respect of 'A + B schedule property'. The said learned Advocate submitted that it will appear from reading of the plaint itself, particularly, the schedules described in the plaint, that 'B' schedule property has been described to be a part and parcel of the 'A' schedule property and the 'A' schedule property is only 6 decimals of land out of total 8 1/2 decimals. The said learned Advocate submitted that the evidence on record would show that the plaintiff has been totally confused with regard to the identity of the suit property itself. He has referred to the evidence of P.W. -1, i.e. the plaintiff herself, wherein the P.W. -1 has stated in cross -examination that it is true that the defendants' predecessor in interest had purchased his land prior to the purchase made by the plaintiff. It is also true that such portion of the defendants' land measuring 7 decimals have been fenced with boundary wall, as it is now, at the time when the plaintiff had purchased her property. It is also the evidence of the said P.W. -1 that she has constructed a boundary wall at the east of the purchased property about 3 to 4 years before she came to give evidence. Even though it is the specific case of the plaintiff that the 'B' schedule property is used as 'Khamar Bari', in evidence she has stated that the said 'Khamar Bari' is not within the purchased land of 8 1/2 decimals of land. The P.W. 2 has stated in his evidence that the land on the eastern side of the defendants' land is also used as 'Khamar Bari'. The said witness further submitted that he has not measured how much of land of the said 26 decimals falls on the eastern side and how much falls on the western side. It may be noted that the said P.W.2 is one of the vendors of the plaintiff and he has also stated that before selling out the land to the plaintiff, the vendors did not prepare any map for proper measurements. From the evidence of D.W. 3, it appears that he has stated that in between the houses of the plaintiff and the land of the defendants, there is no lane but from the cross -examination, it appears that he has stated that there is a 'gali' in between the houses of the plaintiff and the defendants. In the evidence the plaintiff herself stated that she has raised pucca construction within the 'A' schedule property measuring 6 decimals "keeping a passage measuring 117 feet in length and 5 1/2 feet in breadth by making boundary wall keeping a door facing towards 'B' schedule property and that the said 'B' schedule property is part and parcel of the 'A' schedule property.