ABDUL SAMED ALIAS KALAI BEPARI Vs. ANILIBI ISLAM

JUDGEMENT

(1.) Present Second Appeal has been filed under Section 100 of the CPC by the plaintiff/ appellant impugning the judgment and decree dated 13.3.95 passed by the learned Assistant District Judge, Nagaon in TA. No. 23/94 thereby allowing the appeal of the respondents and reversing the judgment and decree dated 16.7.94 passed by the learned Munsiff No. 1, Nagaon in T.S.No. 173/93 for the relief inter alia for the grant of declaration that he is the owner of the land described in Schedule-A of the plaint and also for the delivery of khas possession of the suit land to him as the defendant No. 1 had sold the said land to the appellant/plaintiff.

(2.) The case of the plaintiff appellant is that he purchased the suit land measuring 61/6 lechas covered by Dag No. 1688 of P.P. No. 1381 from the defendant No. 1 by a registered sale deed No, 1198 of 1988 with a stipulation that the defendant No. 1 will deliver its khas possession after removing the chali standing thereon and also vacating a portion of the said chali which was in the occupation of the defendant No. 2 who occupying a portion of the chali as licensee under the defendant No. 1. However, after partition and mutation of the suit land in appellant's name its area was reduced to 6 1/6 lechas and the land which was subject matter of sale deed executed by the defendant No. 1 in his favour was thus subjected to some change. It was further alleged that it was stipulated at the time of sale of the land by defendant No. 1 that he will deliver its vacant possession after evicting therefrom defendant No. 2 who was in occupation of the part thereof as licensee. The defendant No. 1, however, did not honour the stipulation, hence the suit.

(3.) Defendant Nos. 1 and 2 both entered appearance in the suit and filed written statement. Defendant No. 1 inter alia contended that the land was sold by him to the appellant had been duly delivered over possession but the suit land was never sold out by him to the appellant. The defendant No. 2 claimed that he was the tenant of a portion of the suit land whereon his building was situated. Both of them accordingly resisted the suit. Defendant No. 1 totally denied the existence of any chalighar on the suit land. Defendant No. 2 further stated that even if the appellant/plaintiff be presumed to have purchased the land then too by operation of law, he has automatically become tenant under the plaintiff as per provision of Assam Urban Areas Rent Control Act, 1972. Both the defendants and the appellant adduced evidence in support of their respective plea. The learned Munsiff after examining the matter in the light of the evidence on record decreed the suit in favour of the plaintiff/appellant. He held that the appellant/plaintiff had purchased the suit land from the defendant No. 1 and that defendant No. 2 was licensee of defendant No. 1 in the chali standing thereon. The plaintiff was accordingly held entitled to decree in his favour and further that the defendant Nos. 1 and 2 are liable to be evicted from the suit land.