RATNA KANTA KALITA Vs. KANAK CHANDRA KALITA

JUDGEMENT

(1.) I have heard learned counsel for the Appellants as well as learned counsel for the respondents and have perused the connected records. This is a second appeal to challenge Judgment and decree dated 7-11-1997 passed by the Civil Judge, Sr. Div. No. 2 in T.A. No. 26/96 reversing Judgment and decree dt. 30-4-96 of Civil Judge, Jr. Div. No. 3 made in T.S. No. 32

(2.) Brief facts giving rise to institution of the suit, (TS 267/94) are as follows. Respondent/plaintiff late Kanak Ch. Kalita (Now Substituted by his legal heirs) allegedpleaded that on 1-11-93 appellant/principal -defendant No. 1, Ratna Kanta Kalita along with his wife and sons (defendant No. 2-5) forcibly trspassed unto his land with intent to dispossess him. That this land was inherited by him from his father and he was in separate possession of the same on the strength of amicable partition amongst the brothers, defendant No. 1 being one of his three brothers, since the year 1966 when amicable partition was effected between the co-sharers. However, the land in his share and possessed by him, although demarcated by boundary pillars, is the continuous eastern half of the dag which was held jointly after amicable partition with appellant/defendant No. 1. That proforma-defendants are heirs of his other two brothers who were given land in lieu thereof separately and share of the plaintiff and the defendant No. 1 is 1B 2K 3L comprising suit dags 2195 and 2198 of K.M. Patta No. 847 as detailed in schedule A attached to the plaint, and hereinafter called the Suit land.

(3.) The further case of the plaintiff/respondent is that due to an incident of trespass on 1-11-93 he lodged a FIR and a Proceeding u/S. 145 Cr.P.C. followed between them wherein appellant/ defendant No. 1 claimed that he was occupying entire land on the understanding that he will relinquish his interest in property purchased at Guwahati from joint-fund". That such claim of defendant was false as no property was purchased at Guwahati from any common fund as alleged.