BINITA HAZARIKA Vs. ATUL CH. DAS

JUDGEMENT

(1.) THIS appeal by the plaintiffs is directed against the judgment and decree dated 31.07.2002 passed by the learned Civil Judge (Sr. Division), Morigaon, in Title Appeal No.11/2001, dismissing the appeal preferred by the present appellants and affirming the judgment and decree dated 10.08.2001 passed by the learned Civil Judge (Jr. Division) No.1, Morigaon, in Title Suit No.21/1993, whereby and whereunder the suit of the present appellants/plaintiffs has been dismissed.

(2.) THE predecessor -in -interest of the present appellants, namely, Sadhan Ch. Hazarika, instituted Title Suit No.8/1990 in the Court of the learned Civil Judge, Nagaon, which suit was subsequently transferred to the Court of the learned Civil Judge (Jr. Division) No.1, Morigaon, on creation of Morigaon Judicial District and consequently the suit has been renumbered as Title Suit No.21/1993, praying for the decree declaring his right, title and interest over the land measuring 1 bigha 16 1/2 lechas, being half of the Schedule -(a) land and also for eviction of the defendant Nos.1 to 4, contending inter alia that originally land measuring 2 bighas 1 katha 13 lechas, described in Schedule -(a) to the plaint, belonged to Matia Nadial, along with whose name, the name of Shri Rameswar Bar Hazarika was mutated in the revenue records on 08.01.1900 in respect of half of the Schedule -(a) land and hence Rameswar had acquired right, title and interest in respect of half of the Schedule -(a) land. It has further been contended that after the death of Rameswar the said land devolved on Madan, his son, after whose death the same devolved on his son Sadhan and thereafter on the plaintiff, she being the widow of Sadhan. It has also been pleaded that taking advantage of absence of Sadhan, the original plaintiff, Gopal, son of Dayal, who is the son of Matia Nadial, transferred 2 kathas of land in favour of Balaram, whose heirs in turn sold the same in favour of defendant No.4. It has also been pleaded that Atul (defendant No.1), who claims to be the son of Gopal also sold 1 katha 17 1/2 lechas of land in favour of defendant No.2. Further pleaded case is that Hazarika Kaibarta (proforma defendant No.5), who is the grand son of Matia Nadial through Gandhak, son of Matia, sold 2 kathas 18 lechas of land in favour of defendant No.2. The plaintiff claims that since he is the successor -in -interest of Rameswar Bar Hazarika, he has the right, title and interest in respect of half of the Schedule -(a) land and hence the original plaintiff claims such right apart from eviction. The plaintiff, however, did not ask for cancellation of the sale deeds executed by Gopal, Atul (defendant No.1) and also Hazarika Kaibarta (proforma defendant No.5). During pendency of the suit the original plaintiff Sadhan died and in his place the present appellants were substituted being his heirs and the right to sue having survived on them.

(3.) BASED on the pleadings of the parties, the Trial Court framed the following issues for determination: -