GAJEN DAS Vs. LEGAL HEIRS OF RAMANI KALITA

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India read with Section 151 CPC challenging the order Mated 12.04.2010 passed by the learned Munsiff, North Salmara, Abhayapuri in Title Suit No. 72 of 2006, whereby the learned Trial Court allowed the petition filed by the plaintiff under Order 18 Rule 4 (2) CPC, Section 138 of the Evidence Act, read with Section 151 CPC praying for allowing re-examination of PW-2, Smti Joymati Roy. The plaintiff filed a Title Suit for declaration of right, title and interest and confirmation of possession in respect of 1 Bigha of land with Dag No. 48, under old Khatian No. 52, new Khatian No. 2, Village-Deohati Part-I, Circle Sub-Division- North Salmara, District-Bongaigaon with boundaries described in Schedule C to the plaint with a further prayer that if the defendants consolidate their possession and start residing in the suit land, a decree for recovery of khas possession of the suit land by evicting the defendants together with demolition of the construction raised by the defendants be passed. Decree for permanent injunction restraining the defendants and their servants, etc. from trespassing into the suit land, and from making any construction upon the suit land as well as from causing disturbance and inconvenience to the plaintiff in peaceful enjoyment of the suit land was also prayed.

(2.) The case set out in the plaint is that 31 Bighas 1 Katha 6 Lechas of land covered by Dag No. 48 and 17 Bighas 4 Kathas 8 Lechas of land covered by Dag No. 47, totalling 49 Bighas 0 Katha 14 Lechas under Khatian No. 52 was settled by the Government in favour of one Amalendu Baruah with heritable and marketable title during the first settlement operation of 1958 - 62. This plot of land is shown in Schedule A of the plaint. Subsequently, the defendants numbering 5 and proforma defendants Nos. 2 to 8 in the suit, purchased some plots from Amalendu Baruah, who was arrayed as proforma-defendant No. 1 in the suit, and obtained possession and mutation and a joint patta was issued. Subsequently, Amalendu Baruah offered to sell 1 Bigha 2 Kathas 10 Lechas of land in favour of the plaintiff and accordingly, on 19.08.1964, the plaintiff paid the agreed consideration amount of Rs. 1,500/-to Amalendu Baruah and accordingly, said plot of land within Dag No. 48 was sold to the plaintiff by registering a Sale Deed dated 19.08.1964 and khas possession was handed over to the plaintiff. The plaintiff continued to remain in possession of the land in question and this plot of land is shown in Schedule B to the plaint.

(3.) The plaintiff sold 2 Kathas 10 Lechas of land on the northern side of the plot of land from the Schedule B land to one Dipak Narayan Dey and handed over possession to him in the year 1993 and thus, one Bigha of land remained under his title and possession. This plot of land is shown in Schedule C to the plaint and the same is the suit land. On 12.01.1994, he found the defendants trespassing into the suit land and also constructing some houses thereon.