PRAMOD KALITA Vs. ANIL KALITA

JUDGEMENT

(1.) This regular first appeal is by the plaintiffs against the judgment and decree dated 12.01.2017 passed by the learned Civil Judge (No. 1), Kamrup, Guwahati in Title Suit No. 122/2007 dismissing the suit of the plaintiffs.

(2.) The appellant as plaintiff filed the suit for declaration of right, title, interest, recovery of possession and permanent injunction. The case of the plaintiff was that Late Lalit Ch. Bharali was the original owner of the suit land measuring 1 bigha 16 lechas covered by Patta No. 241 and Dag No. 466 described in the schedule of the plaint. The plaintiff No. 1 by registered sale deed No. 2316 dated 10.03.2005 purchased 2 katha 18 lechas of land out of Dag No. 466 from Mrigen Bharali (proforma defendant No. 5) being the legal heir of late Lalit Ch. Bharali. The plaintiff No. 2 also purchased 2 katha 18 lechas of land out of the said Dag No. 466 from Mrigen Bharali by sale deed No. 2317 dated 10.03.2005. It was stated that one Bhaben Rongpi cultivated the land under the original pattadar and on an amicable settlement with the Bhaben Rongpi, the legal heir of Lalit Ch. Bharali, proforma defendant No. 5 sold the entire land of Dag No. 466. Both the plots of land purchased by the plaintiffs being contiguous, the plaintiffs jointly constructed boundary wall covering the entire land of the suit dag as one plot. However, later on, it was revealed that the vendor of the plaintiff wrongly gave possession of the land covered by Dag No. 473, instead of land covered by Dag No. 466, which was purchased by the plaintiffs and the plaintiffs also came to know that that the land of Dag No. 473, possession of which was given to the plaintiffs, actually belong to one Giridhar Taro. Having come to know about the possession of Dag No. 473, the plaintiffs made an application before the Settlement Officer to demarcate the Dag No. 466, which was purchased by them and accordingly, the Lot Mondol demarcated the Dag No. 466, which was purchased by the plaintiffs. After such demarcation and identification of Dag No. 466 by Lot Mondol, the plaintiffs took possession thereof and erected bamboo fencing covering the entire suit land covered by Dag No. 446. Both the plaintiffs being Government servant, could not visit the suit land regularly and on the last week of July, 2006, when the plaintiffs went to the suit land, they found that the defendant No. 1 has trespassed into the suit land and constructed a house thereon. When the plaintiffs informed the defendant No. 1, that the land belongs to them, the defendant No. 1, agreed to settle the matter amicably by measuring the land. However, the defendant No. 1, on various pretexts did not come forward to settle the dispute and in the meantime, the defendant No. 2, 3 and 4 also constructed temporary sheds over the suit land. Having found no alternative, the plaintiffs have filed the suit for declaration of right, title and interest and the consequential reliefs as indicated above.

(3.) The defendants No. 1 to 4 filed a joint written statement. Besides the legal pleas of maintainability, bar of limitation and non-joinder of necessary parties, etc., the specific case of the defendants No. 1 to 4 was that the proforma defendant No. 7 was in possession of the land covered by Dag No. 465 as well as 466 and he acquired title over the said land by virtue of long and uninterrupted possession. The defendant No. 1, 2, 3 and 4, namely, Sri Anil Kalita, Sri Soneswar Baruah, Sri Dwijen Talukdar and Biren Chandra Bharali purchased the possessory right over 5 kathas 10 lechas of land covered by Dag No. 465 from Sri Bhaben Rongpi (proforma defendant No. 7) by four numbers of (unregistered) deeds and all of them took possession thereof. The unregistered deeds in favour of defendant No. 1, 3 and 4 were executed on 28.06.2002 and the deed in favour of defendant No 2 was executed on 02.07.2007. The possession of remaining land of the said dags was sold to two other persons, namely, Satish Medhi and Madhab Deka and Satish Medhi in turn sold his portion of land to Kishor Talukdar and all of them were possessing the respective land by constructing houses. The pleaded case of the defendants was that they have been possessing the land, which was purchased by them from Bhaben Rongpi and the plaintiffs have given a wrong boundary in the schedule of the plaint covering the land in possession of the defendants. It was also the case of the defendants that the land purchased by them from Bhaben Rongpi was Government land and the same has no relation with the land of Dag No. 466. It was also stated in the written statement that out of the said 1 bigha 16 lechas of total land in Dag No. 466, 3 katha 18 lechas was acquired by the Government for Oil India and a separate patta was issued in respect of said 3 katha 18 lechas and therefore, only 1 katha 18 lechas of land was left out in the Dag No. 466 and therefore, the vendor of the plaintiffs could not have sold, nor the plaintiffs could acquire title over the entire 1 bigha 16 lechas of land of Dag No. 466. It was also stated that the land was occupied by one occupancy tenant, namely, Gong Mikir and therefore, the pattadar could not have sold the land in view of occupancy right of the tenant.