SARUMAI SARMAH Vs. MAKHAN CHANDRA KHATONIAR

JUDGEMENT

(1.) This appeal by the defendants, is directed against the judgment and decree dated 24.12.2001, passed by the learned Civil Judge (Senior Division), Jorhat, in Title Appeal No.10/1989, allowing the appeal by setting aside the judgment and decree dated 31.01.1989 (decree drawn on 16.02.1989), passed by the learned Munsiff No.1, Jorhat, in Title Suit No.60/1980, whereby and whereunder the suit of the plaintiff was initially dismissed.

(2.) The respondent No.1 as plaintiff instituted the aforesaid suit praying for eviction of the defendant No.1, Bipin Ch. Sarmah, who is the predecessor-in-interest of the present appellants, and also for recovery of khas possession, in respect of the land measuring 1 bigha 1 katha 12 lechas covered by Dag No.707 of periodic patta No.222, described in the schedule to the plaint, contending inter alia that the land measuring 2 bighas 0 katha 14 lechas was originally belonged to the father of the plaintiff and proforma defendant No.6 as well as the predecessor-in-interest of the proforma defendant Nos.7 and 8, which land they have inherited after the death of their father Padmeswar. It has further been pleaded that out of the said land, an area of land measuring 2 kathas 17 lechas was acquired by the Collector for a public purpose in L.A. Case No.23/77-78, leaving 1 bigha 4 kathas 9 lechas. The further pleaded case of the plaintiff is that out of the said land they have sold 1 bigha 5 lechas to the proforma defendant Nos.2 to 5 and thus the plaintiff as well as the proforma defendant No.6 and the predecessor-in-interest of the proforma defendant Nos.7 and 8 became the absolute owner in respect of 1 bigha 1 katha 12 lechas, which is the suit land. According to the plaintiff, the father of the defendant No.1 Bipin, who has married the sister of Padmeswar, was allowed to occupy 1 katha of land on the southeast corner of the suit land, out of sympathy and taking advantage of the same, he initially claimed the compensation for the acquired land and thereafter encroached the entire land measuring 1 bigha 1 katha 12 lechas. The plaintiff, therefore, instituted the suit for eviction of the original defendant No.1 and also for recovery of khas possession.

(3.) Bipin Ch. Sarmah, original defendant No.1, who is the predecessor-in-interest of the present appellants, filed the written statement denying the claim of the plaintiff and contending inter alia that his father was allowed to occupy the land by Padmeswar during his lifetime, who has subsequently shifted to Tengakhat, by virtue of which initially his father and thereafter the defendant No.1 continued to occupy the land. It has further been pleaded that since the defendant No.1 is possessing the land openly and adversely denying the title of the lawful owner, he has acquired the right over the suit land by prescription of law i.e. by adverse possession.