MANOMAYA KHATIWARA Vs. CHURAMONI KHATIWARA

JUDGEMENT

(1.) These two second appeals being RSA No. 218 of 2010 and RSA No. 169 of 2002 have been analogously listed for hearing in view of the fact that the 2 contesting parties in these 2 second appeals have been litigating, claiming title with respect to the same plot of land. The facts involved in the 2 second appeals are summarily narrated in the following paragraphs.

(2.) The legal battle between the parties was initiated with the institution of Title Suit No. 27 of 1990 by Baidnath Khatiwara against his nephew Churamoni Khatiwara praying for declaration that the defendant of the said suit was Adhiar under the plaintiffs and the said suit was subsequently renumbered as title suit No. 33 of 1990 on being transferred to the Court of the learned Additional District Judge. By filling a written statement in the said suit, defendant Churamoni Khatiwara submitted additional written statement, after the plaint in Title Suit No. 33 of 1990 was amended by the plaintiff, Baidnath and thereby defendant Churamoni denied his status as Adhiar under plaintiff Baidnath and rather claimed the title. Under such circumstances plaintiff Baidnath withdrew Title Suit No.33 of 1990 with liberty to refile and thereafter filed T.S. No.1 of 1997 in the Court of learned Munsiff at Lakhimpur. But since the suit was valued as Rs.42,000/ -, the plaint was returned for refilling before the appropriate Court and accordingly the new suit being Title Suit No. 1 of 1997 came to be registered in the Court of learned Additional District Judge at North Lakhimpur.

(3.) In this suit plaintiff described himself as the owner of 11B 1K 1L land in which the defendant Churamoni is described to be Adhiar with respect to half of the land i.e. 5B 3K -L. The plaintiff stated in the plaint that initially the defendant entered into as Adhiar since the year 1985 and was given the share of Adhi till 1989 but ultimately when he started claiming ownership over the plot of land, the defendant denigrated himself to the status of encroacher and thus without serving any notice under Section 54 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, the plaintiff filed the aforesaid suit in which he not only prayed for declaration of his right, title and interest over Schedule -1 land, but also prayed for ejectment of the Adihar (defendant) from Schedule -2 land appearing in the case. The defendant Churamoni denied to be an Adihar under the plaintiff and also raised the plea of res judicata, challenging maintainability of the suit. It is the pleading of the defendant that his name was no where written as Adihar and that he was really the owner of the land and that plaintiff subsequently came from Nepal. It is further stated in Paragraph -8 of the written statement that the allegation of the plaintiff that the defendant wrongly got his name included in the records of rights behind the back of the plaintiff was incorrect and that it is the plaintiff who gave his signature in the chitha recognizing the right of the defendant. With a view to grab the land of the defendant, he had filed title suit No. 39 of 1990 and obtained decree therein. The defendant further pleaded that the trial court decree in Title Suit No. 1/1997 was affirmed by the learned Appellate Court in Title Appeal No. 1/2002 and the second appeal was pending before the High Court at that time. In the title suit while the plaintiff was staking claim of title to the land, same was also the claim of the defendant as well. On such rival contentions learned trial court framed following 8 issues: