ANIL KUMAR DAS Vs. GANESH CHANDRA OJHA

JUDGEMENT

(1.) This appeal by the defendant is directed against the judgment and decree dated 23.12.2010 passed by the learned Civil Judge, Barpeta, in Title Appeal No. 29/2010, dismissing the appeal preferred by the present appellant by upholding the judgment and decree dated 05.06.2010 passed by the learned Munsiff No. 1, Barpeta, in Title Suit No. 258/2008, whereby and whereunder the suit filed by the present respondent as plaintiff has been decreed. The respondent as plaintiff instituted the said suit for declaration of right, title and interest over the land measuring 4 kathas more fully described in Schedule-A to the plaint and also for recovery of khas possession by evicting the defendant from 1 katha land (B schedule land), which forms part of A schedule land, contending inter alia that the land measuring 4 kathas (Schedule-A) was purchased by him by a registered deed of sale dated 09.12.1994 (Ext.-1) from one Rajendra Deuri, pursuant to which the plaintiff was put into possession. It has further been pleaded that the defendant, who is on the eastern boundary of the said land, started creating trouble in peaceful possession of the plaintiffs land, for which the demarcation proceeding was initiated at the instance of the plaintiff and demarcation was done on 12.06.2003 and thereafter the defendant initially on 05.02.2008 tried to encroach the plaintiffs land and was successful in encroaching 1 katha of land, described in Schedule-B to the plaint, which necessitated filing of the suit.

(2.) The defendant on receipt of the summons entered appearance and filed written statement contending inter alia that the suit is not maintainable for non-joinder of necessary party, namely, brother of the defendant, Amarendra Das, in whose favour the settlement was granted by the Govt. of Assam in respect of 1 bigha 5 lechas of land in Dag No. 709 and that though the plaintiff purchased 4 kathas of land in Dag No. 708, he was, in fact, in possession of land measuring 3 kathas, as 1 katha of land on the western boundary of the plaintiffs land has been used for construction of a road. According to the defendant, he along with his brother are in possession of the land in Dag No. 709 and never encroached upon the land in Dag No. 708.

(3.) During pendency of the suit, the Trial Court appointed an Amin Commission to find out whether the defendant has encroached any land belonging to the plaintiff in Dag No. 708. The Amin Commissioner has submitted his report on 22.03.2010 on the basis of the inspection and measurement of land done on 02.02.2010 by the revenue staff in presence of the plaintiff, defendant and their respective learned counsel.