DILIP KUMAR ROY Vs. PANCHKARI SINHA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 11th May, 1984 passed by Sri B.B. Sarkar, learned Additional District Judge, Rampurhat, Birbhum in Title Appeal No.64 of 1980 setting aside the judgment and decree dated 27th February, 1980 passed by Sri T. Mukherjee, learned Munsif, second Court, Rampurhat in Title Suit No. 74 of 1968 and remanding the suit with the direction to afford the plaintiffs opportunity to substitute the legal representatives of deceased defendant No. 2 and to decide the suit according to law keeping in view the findings and observations made in the body of the judgment.

(2.) From the records it appears that the suit has a chequered history. In 1968 the plaintiff filed the Title Suit No. 74 of 1968 for declaration of right, title and interest in `Ka' and `Kha' schedule of lands of the plaint and for a declaration for recovery of khas possession in `Ga' schedule of land. The plaint case was that the suit property belonged to the plaintiff No. 3 who made a deed of gift to the plaintiffs 1 and 2 in respect of some of his properties. One Sarat Kumar Dutta was the recorded owner of `Kha' schedule of land and he disposed of .7 decimals of land to the plaintiffs by 3 different deeds and since then the plaintiffs are in possession thereof. Plots Nos.847 and 848 are two tanks belonging to the plaintiffs. Plot No. 846 is bastu of the plaintiffs and plot No. 930 partly belongs to the plaintiffs. Plots Nos. 844 and 845 which are tanks and plot No. 931 which is a bastu belong to the defendants. The plaintiffs alleged that the defendants had encroached upon the `Ga' schedule of land. Defendants 1 and 2 contested the suit averring inter alia that inter alia that there was no encroachment on the plaintiff's land. `Ga' schedule of land had been possessed by them and their predecessor-in-interest for more than 50 years raising walls. Referring to a standing tamarind tree and a neem tree in plot No. 844 defendants showed that this plot also was under their possession and that to the south of that dag they had no claim and they have never encroached any other land in `Ga' schedule.

(3.) The learned Munsif, Sri K.K. Kundu decreed the suit in part declaring the plaintiff's right, title, and interest over the `Ka' and `Kha' schedule of lands and dismissing the prayer for recovery of khas possession in `Ga' schedule of land and for mesne profits. The learned Munsif further found that the defendants have been possessing the green hatched portions for more than 12 years before the institution of the suit and as such the defendants acquired `the good adverse possession' over this green hatched portions.