JAYANTA SAHA Vs. TARUN KUMAR SAHA

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the Judgment and Decree dated 09.07.2007 as passed by the learned District Judge, South Tripura, Udaipur in Title Appeal No. 06 of 2007 affirming the Judgment and Decree dated 01.12.2006 as passed by the learned Civil Judge (Sr. Division), South Tripura, Udaipur in T.S. No. 22 of 2002.

(2.) For purpose of determining the substantial question of law, the fact that may appear essential is briefly noted: The predecessor of the plaintiff-respondent namely, Girindra Mohan Saha purchased the land described in the A Schedule of the plaint along with other pieces of land from one Indra Lal Saha, predecessor of the appellants in the year 1964 by the registered sale deed No. 4532 dated 25.09.1964 and the land that was purchased was measuring .46 acre and after purchasing, the said predecessor of the plaintiff-respondent got possession and had been in possession of the said land. The said predecessor died in the year, 1980 and after his death, the suit land along with other lands were partitioned among the co-sharer. By the registered deed of partition No. 1-1996 dated 12.09.2001, the plaintiffrespondent got the suit land along with other lands, but while taking possession of his share in pursuance to the partition deed dated 12.09.2001 in the month of September, he found that the defendants have stealthily encroached .08 acre of the purchased land as described in the A Schedule. The said encroached land has been separately described in the Schedule B of the plaint which is referred herein after as the suit land. The plaintiff-respondent failed to pursue the appellants-defendants herein to vacate the said land and as consequence thereof, the instant suit was filed for recovery of the possession based on the title. The defendant Nos. 1 to 5 filed a written joint statement whereby they denied the entire allegation of encroaching the suit land or refusal of vacating the same. They categorically stated in the written statement that There is no existence of B schedule land, it is an imaginary one. No land of the plaintiff was encroached by the defendants. The defendant Nos. 6 and 7 by filing a separate written statement claimed that they are now possessing the said suit land as the title of that part of the land devolved unto them after death of their father Indra Lal Saha and the plaintiff-respondent has no right on that land. They stated in Para 5 of their written statement as under:

(3.) Apart that, the defendant Nos. 6 and 7 had stated that during revisional survey, the Survey Staff most wrongly and illegally recorded the land of Sabek dag No., 2547 comprising an area of .08 acres, in the northern portion of Hal plot No. 4329 under R.S Khatian No. 935 in the name of the legal heirs of Girindra Mohan Saha namely Tarun Kanti Saha and others. At the time of attestation of this said Khatian, Indra Lal Saha filed objection before the Settlement authority and at the time of hearing that objection Tarun Kanti Saha and others verbally submitted that they had no objection if R.S. record of right and Map be rectified on the basis of F.P. Sabek Khatian and Map, but the survey staffs ignored to rectify the said R.S. record of right and map.