PRASANNA KR BARMAN Vs. DEBENDRA NATH BARMAN

JUDGEMENT

(1.) Heard Mr B. Kalita, learned advocate for the appellant and Mr M.K. Choudhury, learned advocate for the respondent.

(2.) This appeal has been filed against the judgment and decree dated 26.5.97 passed by learned District Judge, Nalbari in Title Appeal No. 16/96. By the aforesaid judgment, the learned Judge dismissed the appeal and affirmed the judgment and decree dated 3.7.96 passed by the Munsiff No. 1, Nalbari in Title Suit No. 31 /94. The learned Munsiff decreed the suit of the plaintiff.

(3.) The brief facts are as follows:- The plaintiff case is that out of I Bigha I Katha 13Lessas of land under Dag No. 129 covered by Kharaj Periodic patta No. 2 of Barnibari village in Uttar Barkhetri Mouza, 2Kathas ILechas of land is purchased by him and he has right title and interest over this land out of this 2Kathas ILessas IKatha purchased by him on 20.3.65 thereon registered sale deed No. 2238/65 and IKatha ILessa on 22.9.66. Through register sale deed No. 4846/66. After purchase he took possession and mutated his name and regularly pay the revenue. The plaintiff has stated that the defendant No. 1 is his nephew. The defendant No. 1 required some land to establish a Holler Mill and requested the plaintiff to establish the Holler Mill on the land described in the Schedule of the plaint. As they are close relative the plaintiff allowed verbally to establish the Holler Mill over 12 lessas of land of the above mentioned dag and patta. The length in 65 feet from north to south and 25 from east to west. In the year 1973 the defendant: established the Holler Mill on verbal permission since then defendant possessing the land. The plaintiff has alleged that there was verbal agreement that the defendant No. 1 till deliver the khas possession by removing the Holler Mill and other materials as and when the: plaintiff asked him to close, the plaintiff asked the defendant to vacate the land as his -requirement, but the defendant No. 1 refused to deliver the khas possession and on 2.2.00 instituted a proceeding. The criminal case was numbered as 14/90. After local inspection by the learned Executive Magistrate the proceeding was dismissed on 16.3.90 and released the land occupied to the Mill and the plaintiffs other land from attachment and the plaintiff is possessing the land. Defendant No. 1 has no right, title and interest and he is barred to vacate the land. Therefore the plaintiff has filed the suit. The plaintiff has also prayed to reserve his right to file a suit in future for measure profit for illegal occupation of land since 2.2.90 by the defendant No. 1. The defendant No. 1 contested the suit by filing written statement. The defendant Nos. 2, 3 and 4 have not contested the suit. So, the suit is proceed ex-parte against them. The defendant No. 1 in his written statement has contended that there is no cause of action for the suit, the suit is time barred. The plaintiff has no joined Dharani Nath, Pabindra Nath, Joyram and Bipin who are necessary parties, accordingly the suit is bad for non-joinder of necessary parties and liable to be dismissed. Contesting defendant's case is that from 1954, the plaintiff/defendant No. 1, father of defendant No. 1 Late Jogeswar Barman, Late Balen Barman and Sri Khaten Barman started joint business at Barnibari Market. At that time they purchased land jointly in different name. Due to difficulties to do joint business on 13.10.70 their movable and immovable properties were partitioned and portioned deed was executed. Properties fall in the share of the plaintiff, defendant No. 1 and father of the defendant No. 1 Jageswar Barman's land were jointly possessed them till 1980. The land fill in the share of Khagen and late Balek are possessed by them. When they were residing jointly till 1980 on 13.5.69 defendant No. 1 got licence for establishment of a Holler Mill and as per the licence defendant No. 1 established the Holler Mill on the suit land from that date defendant No. 1 is running the mill over the suit land. On 13.7.84 defendant No. 1 separated from his brothers in presence of their father late Jogeswar Barman and executed a family deed of partition. As;per the family partition the mill fall in the share of the defendant No. 1. 2 Bighas IKatha 3Lessas of basti land on the southern side also fall in the share of the defendant No. 1 and he is possessing the same. The plaintiff is possessing 3Bighas 3Kathas and 16 Lessas of land covered by patta 61 under Dag Nos. 297/350/343/675 of the defendant illegally. When contesting defendant asked the plaintiff to vacate his land then plaintiff alleged that defendant No. 12 is possessing the suit land of the plaintiff alleged that defendant No. 12 is possessing the suit land of the plaintiff, the contesting defendant has alleged that the plaintiff has no right, title over the suit land. As per mentioned in the partitioned deed executed in the year 1854 the plaintiff has filed this false suit. Plaintiff is the own uncle of the defendant No. 1. In the family partition deed executed in the year 1980 the plaintiff is directed to settle the disputes between the defendant No. 12 and his brothers. Taking this advantage to harass the defendant No. 1 the plaintiff has filed this false suit with the help of Atul Barman, brother of the defendant No. 1. Accordingly the defendant No. 1 has prayed for dismissal of the suit with costs.