PHOOLMANI JOK Vs. BUDHINDRA NATH BORGOHAIN

JUDGEMENT

(1.) This second appeal has been filed by the defendant-appellants being aggrieved by the judgment/decree dated 27.1.1995, passed by the learned Additional District Judge, Jorhat in Title Appeal No. 10 of 1991 setting aside the judgment and decree dated 14.6.1991, passed by the learned Munsiff, Jorhat in Title Suit No.93 of 1986. The learned Munsiff dismissed the suit while the learned first appellate Court reversed the same and decreed the suit.

(2.) The plaintiffs-respondents (herein after called the plaintiffs) filed the Title Suit No.93 of 1986 against the defendants-appellants (herein after called the defendants) seeking declaration of right, title and interest, recovery of possession, compensation of Rs.3,150/- and for perpetual injunction contending, inter alia, that the suit land comprising an area of 9 bighas 14 lechas covered by Periodic Patta No.58, Dag No.206 and 208 in Chereli Gohain Gaon, Amguri Kharikatia Mouza was purchased by them from the defendant No. 1 through five registered sale deeds on different dates viz 28.5.1965, 19.4.1966, 31.1.1967, 1.9.1967 and 31.5.1968 for adequate consideration. The plaintiffs had been jointly possessing the suit land and had been paying Govt revenue regularly, but unfortunately on 29.4.1982, after lapse of about 1 decades, the defendant No.1 with his sons forcibly trespassed into the suit land and started possessing the same illegally. The plaintiffs protest put in deaf ears of the defendants. Being helpless, the plaintiffs moved the Executive Magistrate for drawing up a proceeding under section 145 of the Code of Criminal Procedure and that was initiated vide Misc Case No.247/1982 against the defendant No. 1 and his sons. Another criminal case bearing No. CR 545/1982 under sections 447/ 506 IPC had been launched against the defendants. In the 145 proceeding, the possession in favour of the defendant No.1 was declared vide order dated 11.8.86 and in the criminal trial, the defendants were acquitted on 19.1.1985. Hence for recovery of khas possession, the plaintiffs filed the suit.

(3.) The defendant Nos 1 and 2 contested the plaint case by filing written statement contending, inter alia, that the defendant No.1 never sold the suit land or any part of it to the plaintiffs, but he mortgaged the suit land in favour of the plaintiffs as he took some loan from late Padmanath Borgohain, the father of the plaintiffs on different phases. He took loan of Rs.750/- on 28.5.1965, Rs.600/-on 19.9.1966, Rs.650/- on 31.1.1967, Rs.350/- on 1.9.1967 and Rs.500/- on 31.5.1968. To secure the loan, he took, on the demand of the creditor Padmanath Borgohain, he had to execute five mortgage deeds. The mortgage deeds were arranged to have been written at the instance of the creditor Padmanath Borgohain and the illiterate defendant No.1 knowing the said deeds to be the mortgage deeds executed the same. The recitals of the deeds had never been read over to him. The creditor enjoyed all the usufructs of the lands mortgaged for considerable period and on expiry of the mortgage period the defendant No.1 took back his lands. In the proceeding under section 145 CrPC both the parties, according to the written statement, divulged their respective cases and the possession of the defendants over the suit land was declared. The principal defendant No.1 being died his legal heirs are made party during trial.