TUFANI NUNIA Vs. MAKRAM ALI

JUDGEMENT

(1.) THIS appeal by the successors -in -interest of the original plaintiff, Tufani Nunia, is directed against the judgment and decree dated 12.4.2002 passed by the learned Civil Judge (Senior Division), No. 2 (now Civil Judge), Cachar at Silchar in Title Appeal No. 36/1992, allowing the appeal preferred by the defendant Nos. 1, 2 and 3, against the judgment and decree dated 14.8.1992 (decree drawn on 26.8.1992) by setting aside the judgment and decree passed by the trial court. The predecessor -in -interest of the appellants instituted the Title Suit No. 121/1988 in the Court of the learned Munsiff, No. 2 Cachar at Silchar for declaration of his right, title and interest over the schedule I(A) land, which is part of schedule I land; declaration of his jot right over the schedule I (B) land, under the proforma defendant Nos. 7 to 16 which is also a part of schedule I land; for declaration that the proforma defendants have no right, title and interest and possession over the suit land. The plaintiff also prayed for declaration that the final khatian No. 54 issued in favour of the principal defendants in respect of Schedule II B land is collusive, fraudulent, illegal and void, apart from claiming a decree declaring the final khatian No. 53 to be accordingly amended/corrected after such cancellation of khatian No. 54. The plaintiff also claimed a declaration that he is a tenant under the proforma defendant Nos. 7 to 16 in respect of the schedule land except schedule I (A) land as well as for declaration that the demarcation case No. 48/87 -88 instituted before the Sub Deputy Collector (Sadar) Silchar is illegal, inoperative, apart from praying for direction to issue khatian in favour of the plaintiff and also for permanent injunction. It has been pleaded by the plaintiff in the plaint that he vide sale deeds dated 13.11.1967 (Ext. 4) and 19.4.1965 (Ext. 6) purchased two plots of land from the original owner namely Harikrishna Nath and Narendra Nath Choudhury, respectively, who have by the said documents transferred their rights over the land measuring 6 bighas 7 kathas 15 chataks and 10 bighas 2 kathas 14 chataks 10 gandas, respectively, which land forms part of schedule IA land. It is the claim of the plaintiff that by virtue of such sale the original owners transferred their right, title and interest in favour of the plaintiff and accordingly the plaintiff has acquired the right, title and interest. The further pleaded case of the plaintiff is that he also purchased the jot rights from the landlord Rup Singh vide registered deed dated 10.4.1963 (Ext. 5), in respect of 20 bighas 10 kathas 12 chataks 10 gandas of land in R.S. patta No. 171 and 172 and hence he became the jot right holder over the said land, out of which 5 bighas 6 kathas 8 chataks of land was surrendered by the plaintiff being ceiling surplus land over which the proforma defendant Nos. 17, 18 and 19 got their possession certificate and accordingly possessed the same. The plaintiff has further pleaded in the plaint that the defendants having no possession or jot right over the land collusively included the land in the khatian No. 53 and 54 issued in their names in the year 1977 and being armed with such khatians issued, there was an attempt made to dispossess the plaintiff from the part of the suit land in the middle of May 1988, for which the suit had to be instituted, as aforesaid.

(2.) THE principal defendants on receipt of the summons entered appearance and contested the suit by filing the joint written statement contending inter alia that Mastan Ali, who is the predecessor -in -interest of the defendant Nos. 1 to 5 and the father of the defendant No. 6 took settlement of the land in RS patta 171 covered by dag No. 708/710/711/721 from the landlord on condition of payment of yearly rent and as such they have acquired the status of non evictable occupancy tenant for which the revenue authority after making necessary enquiries issued two khatians being 53 in respect of 25 bighas 2 kathas 8 chataks of land and 54 in respect of 7 bighas 17 kathas of land pertaining to RS 171 and 172. It has further been pleaded that besides that Mastan Ali also purchased jot rights in respect of 7 bighas 6 chataks covered by dag No. 709, 909, 711, 718, 712, 713 in patta No. 172 by registered deed dated 7.12.1957 and 10.4.1958. The defendants, however, in the written statement have admitted the proprietary right in respect of 10 bighas of land in patta No. 172 contending that though the plaintiff has the proprietary right, the possession of the property is with the defendant as the tenant. The further pleaded case of the defendants is that khatian 56 was issued in favour of the plaintiff in respect of the land measuring 6 bighas 6 chataks only in patta No. 172 but the plaintiff has claimed the jot right for more than the said land pertaining to said patta. It has further been pleaded that though the plaintiff has also claimed the jot right in respect of 20 bighas 10 kathas 12 chataks 10 gandas by virtue of purchase from Rup Singh on 10.1.1963 covered by RS patta No. 171 and 172, Rup Singh had no right over the said land to sell such jot right. That apart, the defendants also pleaded that the suit is bad for non joinder of necessary parties.

(3.) WHETHER the suit is barred by limitation?