GAYATRI KUMARI Vs. ARJUN KUMAR

JUDGEMENT

(1.) THE instant appeal under Order 43 Rule 1 (u) of the Code of civil Procedure (`CPC' for short) has been filed challenging the legality of the judgment and order dated 12.10.2007 passed by the learned Civil Judge (Sr. Division), Guwahati in the Title Appeal No.61 of 2006 setting aside the judgment and decree passed by the learned Civil Judge (Jr. Division), No.3, Guwahati in Title Suit No.37/2005, remanding the title suit to the learned trial Court for giving a fresh decision against the issue Nos.4 to 6 and also on the additional issue as framed by the learned Appellate Court.

(2.) HEARD Mr. P Upadhyaya, learned counsel appearing for the appellant. None appeared for the respondent while the appeal was called on for hearing, though, learned counsel have entered appearance by accepting notice.

(3.) THE pleaded facts as averred in the plaint is that the plaintiff No.1 is the wife, plaintiff Nos.2 and 3 are sons and plaintiff No.4 is the daughter of late Gajen Ram Kumar @ Gajen Kumar, who was the owner and possessor of a plot of land measuring 15 lechas covered by KP Patta No.159 (old) 5 (new) and Dag No.267 of village Gotanagar, Guwahtai-33, Mouza Jalukbari. THE said Gajen Ram Kumar died on 02.07.2003 and on his death the plaintiffs became the owner of the said land by way of inheritance. On the other hand, the defendant is the owner of land adjacent to the suit land on the south. Dag number of his suit land is 262 and there was clear boundary demarcation in between the plaintiffs' land and defendant's land. But on 20.09.2004 the defendant demolished the southern side boundary fencing and trespassed into the suit land resulting in initiation of a proceeding under Section 145/146 of the Code of Criminal Procedure (`CrPC' for short) and the said land was attached on 24.09.2004 passed in Case No.299m/2004, which, however, was challenged before the learned Sessions Judge, Kamrup and the learned court stayed the operation of the order dated 24.09.2004 vide order dated 15.10.2004 passed in Criminal Revision No.112/2004. Accordingly, the attachment order was withdrawn on 17.10.2004 and the plaintiffs were dispossessed from the suit land on 17.10.2004 and hence the suit seeking the reliefs as indicated above.