DINESH CHANDRA SARDAR AND OTHERS Vs. HARENDRA BISWAS

JUDGEMENT

(1.) THIS second appeal by the plaintiffs which raises some interesting questions of law is directed against the decree dated 30th May, 1970, of the Assistant District Judge, Dibrugarh, by which the suit of the plaintiffs was dismissed on reversing the decree of the trial Court made in their favour.

(2.) THE case of the plaintiffs was that the land in dispute measuring 28 bighas 2 kathas 14 lechas was firstly held by their father Sambhunath on annual patta and on his death it was settled in their favour as heirs of Sambhunath. Taking advantage of the fact that they (the plaintiffs) were minors, the defendant managed to secure possession of the land in the year 1960. When the plaintiffs grew up in years and learnt about their rights in the land they approached the defendant for restoring possession of the land to them but the defendant turned back on their legitimate demand. Having been left with no alternative they filed the suit claiming khas possession of the land on declaration of their title thereto. The suit was resisted by the defendant who traversed the allegations of fact made by the plaintiffs and pleaded that the suit was not maintainable inasmuch as it was, practically speaking, a suit for challenging the settlement of the land made with him and that such settlement was immune from challenge in Civil Court. According to the defendant, the plaintiffs' father had made over khas possession of the land to him on 23 -9 -59 and then he (the plaintiffs' father) made a petition to the Sub -deputy Collector praying that the patta of the land be issued in favour of the defendant. The Sub -deputy Collector, the defendant alleged further, cancelled the patta in favour of the plaintiffs' father, converted the land into khas ownership of the Government, and thereafter he issued annual patta in favour of the defendant. The defendant asserted that he had been in continuous possession of the land for a long number of years without any break.

(3.) ON appeal by the defendant the learned Assistant District Judge set aside the finding of the trial Court that the defendant must be deemed to have admitted the plaintiff's title in the land on the date of the suit, and then held, on assessment of the material on record, that it was the defendant, and not the plaintiffs, who at present have lease -hold right in the land. Other distinct findings recorded by the Assistant District Judge were that the annual patta of the land at present is in favour of the defendant and that the plaintiffs had failed to prove that they have subsisting title in the land. Another finding returned by the first appellate Court was that the plaintiffs have no right to challenge in Civil Court the settlement of the land made in favour of the defendant.