LAKHAN CH ROY Vs. KEWELAPTI DEVI

JUDGEMENT

(1.) Aggrieved by the judgment and decree, dated 6.4.99, passed by the learned Additional District Judge, Sonitpur, Tezpur, in TA No. 4 of 1997, reversing the judgment and decree, dated 11.11..97, passed by the learned Civil Judge, (Sr Division), Sonitpur, Tezpur, in TS No, 14 of 1992, and thereby decreeing the suit, the defendant-appellants have preferred this Second Appeal. The appeal was admitted for hearing on the following two questions as substantial questions of law:- 1) Whether Ext. 1 (Bichar) can extinguish the period of limitation as envisaged under Article 65 of the Limitation Act, 1963 ? 2) Whether the protection under Section 5 and benefit of Section 6 of the Assam Non Agricultural Urban Areas Tenancy Act is applicable in the instant case ?

(2.) The case of the respondent-plaintiff as unfolded, from the records, may, in brief, be stated thus :- The respondent is sole land-holder, owner and possessor of the suit land. In about 1984, the defendant-appellant No. 1. who was landless, approached the respondent-plaintiff with request to allow him to erect a thatched house on the suit land. The respondent allowed the appellant No. 1 to construct a thatched house as requested for by him and to let him live there for a few months, but the appellant No. 1, after living there for about three months, started constructing another thatched house without permission from the respondent. Though the respondent raised objection thereto, the appellant continued with the construction. The respondent, then, approached the authorities of the Balipara Gaon Panchayat, whereupon a Bichar (i.e., sitting for settlement of disputes) was held, on 27.12.85, in the office of the said Panchayat, wherein the appellant No. 1 was also present. It was agreed in the said Bichar that the appellants would be allowed to live on the said suit land for a further period of two years and that after 31.12.87, the appellants would hand over vacant possession of the suit land to the respondent. The appellants, however, on one pretext or another did not vacate the suit land though they kept on assuring the respondent that they would soon vacate the same. The respondent has been paying land revenue regularly in respect of the suit land. The respondent neither received nor demanded any rent from the appellants for occupation of the suit land. In order to grab the suit land permanently, the appellants got a proceeding initiated under Section 107 CrPC, in Misc case No. 17/91, by claiming that they had been in possession of the suit land for more than 30/40 years. The said Misc Case was, eventually, dropped on 16.12.91. It was during the course of the proceeding in Misc Case No. 17/91 that the respondent came to learn that the appellants had illegally and stealthily got the suit land mutated in the name of the appellant No. 2 in collusion with the revenue authorities of Charduar Revenue Circle. On coming to know of this mischievous design, the respondent moved an application before the Circle Officer concerned and got the mutation of the suit land standing in the name of appellant No. 2 cancelled and the original mutation was accordingly restored on 23.10.91. Thereafter, the appellants started, on 22.6.92, construction of a bath room of a semi-permanent nature with pucca floor on the suit land without permission of the respondent. The respondent, therefore, instituted the suit praying, inter alia, for recovery of possession of the suit land by demolishing the structures raised thereon by the appellants and also for permanent perpetual injunction restraining the appellants from re-entering the suit land.

(3.) The appellants contested the suit by filing written statement wherein it was asserted that about 45 years back, the appellants had taken possession of the suit land on being allowed by the respondent's parents to stay on the suit land by constructing houses thereon and that they have been in occupation of the suit land treating the same as their own land. The respondents title, if any, to the suit land stood extinguished by adverse possession. The appellants admitted that they never paid any rent to the respondent. The appellants admitted that they did get a proceeding under Section 107 CrPC initiated, which was eventually dropped, and that the mutation, which they had obtained on the plea of adverse possession, was also cancelled. On the strength of their plea of adverse possession appellants prayed for dismissing the suit.