LOHIT CH. BARUAH Vs. ARUNA BARUAH

JUDGEMENT

(1.) Heard Mr. S.P. Roy, learned counsel for the appellant. Also heard Mr. S.K. Ghosh, the learned counsel for the respondents No.1, 2 and 3 and Mr. G. Bordoloi, learned Govt. advocate appearing for respondents No.4 to 6. No representation by the proforma respondents No.7 and 8.

(2.) By this appeal under Section 100 CPC, the appellants have assailed the first appellate judgment and decree dated 30.08.2005 passed by the learned Civil Judge (Senior Division) No. 1, Kamrup, Guwahati, thereby dismissing the appeal and affirming the judgment and decree dated 11.02.2004 passed by the learned Civil Judge (Jr. Division) No.2 Kamrup (M), Guwahati in TS No.294/1998, thereby dismissing the suit of the appellants and dismissing the counter-claim filed by the respondents.

(3.) The case of the appellants-plaintiffs they are the absolute owners of the land measuring 2B-3K-11L, covered by Dag No. 854, 855, 901 of K.P. Patta No. 597 of North Guwahati Town, Mouza- Silasindurighopa, district- Kamrup. The said land is described in the schedule of the plaint. It was projected that the respondent No.1 is the wife of Late Karuna Kanta Baruah and the respondents No. 2 and 3 are the sons of Late Karuna Kanta Baruah and that Late Karuna Kanta Baruah was the son of paternal aunt of the appellants. Accordingly, Karuna Kanta Baruah was appointed as the caretaker of the property of Nabin Chandra Baruah, who was lying in bed during the last part of his life on condition that he would vacate the land as and when required by the appellants. However, the said Karuna Kanta Baruah fraudulently got his name mutated as occupancy tenant and manage to get a draft khatian bearing No. 101/128 over the suit land in the settlement operation of 1957-64 and that the khatian was issued without any notice to the appellants, as such, they were not aware of occupancy right recorded in the name of Karuna Kanta Baruah in the draft chitha of 1957 in respect of the suit land. It was projected that the suit land was a non-agricultural land and was within the jurisdiction of North Guwahati Municipal Town and the said Karuna Kanta Baruah was neither a cultivator nor he had cultivated the suit land for the purpose of his livelihood as he was in government service. Hence, by projecting that the khatian in respect of occupancy tenancy was illegally granted, the suit has been filed by projecting that only when notice of tenancy case No. 9/1997 was served on the appellants, they came to know about the recording of occupancy tenancy right in respect of Karuna Kanta Baruah. Accordingly, the appellants had prayed for the following reliefs.