MATIUR CHOUHURY Vs. NAZMA KHANAM CHOUDHURY

JUDGEMENT

(1.) By this application under Section 115 of the CPC, 1908 and under Article 227 of the Constitution of India, the petitioners have challenged the order dated 5.5.2011, passed by the learned Munsiff No. 1, Kamrup, Guwahati, in Misc. (J) Case No. 213/10 rejecting the application for condonation of delay of 412 days and the order dated 5.52011 passed by the learned Munsiff No. 1, Kamrup, Guwahati in Misc. Case (J) No. 212/2010, dismissing the application under Order 9 Rule 13 of the CPC for setting aside the ex-parte judgment and decree dated 18.3.09 passed in Title Suit No. 580/06 as a consequence of rejection of the application for condonation of delay. The opposite parties as plaintiffs filed the suit in the Court of Civil Judge, Sr. Division No. 1, Kamrup, Guwahati against the present petitioners and others for declaring right, title and interest in respect of the land described in the schedule and for recovery of possession by evicting the defendants and for permanent injunction. The suit was transferred to the Court of learned Civil Judge (Sr. Division) No. 2, Kamrup at Guwahati, wherein the same was registered as Title Suit No. 69/2000.

(2.) The case of the plaintiffs, shortly, as set out in the plaint, is that the husband of plaintiff No. 1 and father of plaintiff Nos. 2 and 3 had purchased an area of 1 bigha of land covered by dag No. 204 of periodic patta No. 27 by a registered sale deed dated 29.6.93 and he died on 7.8.97. At that point of time, the plaintiff Nos. 2 and 3 were minors. The present petitioners, who were defendants Nos. 3 and 4 in the suit, along with defendant Nos. 1 and 2, who were owners of land in the western side of the land of the plaintiffs, defendant No. 5, who is the owner of the adjacent land in the southern side of the land of the plaintiffs and defendant Nos. 6 to 11, who were neighbours of the adjacent land of the plaintiff in the eastern side, collusively, illegally and forcibly occupied an area of 1 katha 18 lechas of land from 3 sides on 28th and 31st of January 2000 and started to construct boundary walls and private paths.

(3.) The suit was transferred to the Court of Civil Judge, Junior Division No. 1, Kamrup, Guwahati, now re-designated as Munsiff No. 1, due to increase of pecuniary jurisdiction of the Munsiffs and on transfer, the suit was registered as Title Suit No. 580/2006. The defendant No. 1 had filed written statement in which it is contended that the vendors of the predecessor-in-interest of the plaintiffs did not have saleable right in respect of 1 bigha of land and defendant Nos. 1, 3 and 4 were enjoying possessory rights after purchase of the said right from Ataur Rahman, Majidul Rahman, who had been possessing the land for last 50 years.