UNION OF INDIA Vs. AZIBUN NESSA KHATUN

JUDGEMENT

(1.) This appeal has been filed by the defendants. The plaintiffs brought a suit being Title: Suit No. 43/89. The learned Munsiff No. 2, Karimganj decreed the suit. An appeal being Title Appeal No. 16/93 was filed and that was dismissed by the learned District Judge, Karimganj. Hence, this Second Appeal.

(2.) During the pendency of the appeal respondent No.l(e) died, but the heirs were not substituted. Looking to the matter I find that the estate is properly represented by other Respondents on record. So the appeal has not abated.

(3.) The brief facts are as follows: - That the plaintiff No. 1 is the owner of the schedule land appertaining to Taluk 14875/186 Abul Md. and 14884/195 khowas Bakshi and some other land comprising some other taluks by mourashi right and the plaintiff Nos. 2 to 4 are his sons and the plaintiffs have right, title interest and possession over the suit land and they have been residing there since Jong years back. The homestead of the plaintiffs was originally covered by the schedule land alongwith some other land comprising several settlement dags including settlement dag Nos. 813 and 814 and the total area is 1.3 bighas. During last settlement survey operation, the homestead land of the plaintiffs were wrongly recorded in the name of some other persons. Then the plaintiff No. 1 filed D.P. Case No. 163 of 1963 and some other cases in the Court of Revenue and Settlement Officer, Karimganj for correction of the settlement reccords of the schedule land and other lands in the name of the plaintiff No. 1 and in that case order was passed on 13.5.65 for correction of Khatian No. 2639 Dag No. 814 covering Taluk No. 14875/186 Abul Md to open a new mourashi Khatian in the name of the plaintiff'covering an area of 1.44 decimals and accordingly fresh Khatian No. 5176 was issued. In respect of schedule remaining land in Dag No. 813 the Revenue and Settlement Officer passed an order on 18.5.65 to the effect that Dag No. 813 covering an area of 1.34 decimals be cancelled from the Khatian No. 2411 and ordered to open a new mourashi khatian in the name of Khan Bahadur Mahmad Ali, Ahmadur Rahman and the plaintiff No. 1 under estate No. 14884/195 Khowaj Bokshi Mahmad Ali and Ahmadur Rahman were owners of 40 decimals land of original settlement Dag No. 813 as plaintiffNo. 1 sold 40 decimals land to Khan Bahadur Mahmad Ali and Ahmadur Rehman. The Govt. of Assam acquired some land of the plaintiff excluding the schedule land and some other lands for B.S.F. Camp, but the homestead land of the plaintiff was neither requisitioned nor acquisitioned by the defendants. The B.S.F. Camp of the defendant No. 4 is situated adjacent to the homestead land of the plaintiff, but the defendants have no right or interest in the schedule homestead land of the plaintiffs. But the defendant No. 4 and his subordinate military personnel were threatening the plaintiffs to leave the scheduled homestead land. In the last week of October,, 1987 the defendant No. 4 forcibly entered into the schedule homestead land and erected iron fencing adjacent to the house of the plaintiffs and also constructed temporary motor garrage and shed house in the schedule land. Hence the suit. The defendants have contested the suit by filing written statement contending, inter alia, therein that mere is no cause of action for the suit and the suit is not maintainable. The defendant's case is that the suit land was requisitioned by the Govt. of Assam for B.S.F. authorities. The schedule land of the plaint measuring 2.38 decimals falls within 20 bighas 16 kathas 2 chataks of the land requisitioned by the Govt. of Assam vide Requisition Case No. 1 of 1968-69. About one bigha of tilla land is in illegal occupation of the plaintiffs and the plaintiffs have been possessing the same illegally since 22.10.87 and this one bigha of land is within 2.38 decimals of the land described in the schedule of the plaint. For acquiring the above mentioned 21 bighas and odd land, the Land Acquisition Case No. 16 of 1971-72 was started by the collector, Karimganj, and the publication of the notice in official gazette is in process. The plaintiffs have no right and title over any portion of the schedule land of the plaint and the B.S.F. authorities did not dispossess that plaintiffs from any land. It is further contended that the schedule land of the plaint was duly delivered to the B.S.F. authority as soon as the suit land was requisitioned etc.