KHARGESWAR BARUAH Vs. KHASNUR ALI

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 30.11.1998 passed by the learned Civil Judge (Senior Division), Darrang, Mangaldoi, in T.A. No. 23/97 modifying the judgment dated 26.09.1997 passed by the learned Civil Judge (Junior Division), Darrang, Mangaldoi in T.S. No. 4/94. The respondent/Defendant No. 1 has filed a cross objection. The case set up in the plaint is that in Periodic Patta No. 42/42 of village- Narikali under Lokrai Mouza, there were two dags: Dag No. 90, which is now numbered as Dag No. 114 and Dag No. 62, which is now numbered as 107. In Dag No. 62 (107), there were 3K 3L of land and in Dag No. 90 (114), there was 7B 4K 6L of land. Land in both these dags were owned by one Tanu. His mother, Puni, survived him and on the death of Tanu, name of Puni was mutated in the patta. Puni sold IB of land to Hari Prasad and 2B to Kerkon Nath. The said land formed part of Dag No. 90 (114). Puni also gifted 4B 4K 6L of land to one Rupnath Saharia. The land belonging to Kerkon Nath was purchased by Diparu Nath and accordingly, his name was also mutated in respect of 2B of land. Father of the plaintiff, Kalaram Koch, purchased 3K 3L of land of Dag No. 62 (107) from Puni by oral agreement and 4B 4K 6L from Rupnath Saharia in Dag No. 90 (114) and accordingly, his name was mutated in the patta in the year 1950. On 02.07.1991, the Defendant No. 1 forcibly occupied 2K 17L of land covered by Dag No. 62 (107) (Schedule-A of the plaint), which prompted him to file a proceeding under section 145 Cr.P.C. and in such proceeding, the learned Magistrate illegally declared possession in favour of the Defendant No. 1. The Defendant No. 1 also, in collusion with Revenue Authorities obtained mutation in respect of 1B 2K 5L only of Schedule-B land measuring 2B 2K 17L in Dag No. 90 (114). In the plaint originally filed, the schedule of the land was shown as 1B out of 2B 2K 17L and mutation was stated to be granted in respect of IB land. The plaint was amended and Schedule-B was changed to 2B 2K 17L. Plaint was also amended stating that mutation was granted in respect of 1B 2K 5L of land.

(2.) In the suit, the following prayers were made:

(3.) In the written statement, defendant No. 1 stated that Schedule-A is not a periodic patta land but is Government land, which is in occupation of the defendant for last 15 years or so. The boundary of Schedule-A land is not correct and the said boundary covers land of Hari Prasad and Diparu as well. It is stated that Schedule-B land belonged to father of the plaintiff, Kalaram Baruah and IB of the Schedule-B land was sold by the father of the plaintiff to one Sanibor Nath on 11.04.1977 by a registered deed and on 31.08.1978, Sanibor Nath, by registered deed, sold the said plot of land to the Defendant No. 1 and delivered possession thereof. There was a slight discrepancy in the Schedule of the land sold to Sanibor Nath in that in the south, instead of Diparu, it should have been mentioned as Hariprasad. Sanibor Nath had transferred the land which was purchased by him from the father of the plaintiff but there was some mistake in number of the Dag. Defendant No. 1 had lent Rs. 1,500/- to the father of the plaintiff in the year 1978 and being unable to repay the amount, the father of plaintiff sold the Schedule-B land to Defendant No. 1 by making endorsement in the concerning Chitha, instead of a sale deed, though requested by the Defendant No. 1. 1B 2K 5L of Dag No. 90 (114) which is transferred by the plaintiff is to the east of the land purchased by Defendant No. 1 from Sanibor Nath and thus the Defendant No. 1 became the owner and possessor of 2B 2K 5L of land. Mutation order was passed on 13.03.1987, though he was in possession from 1978. The Defendant No. 1 had raised many constructions in the said plot of land-a full wall pucca house in 1978/1979 in the northern side, another pucca house on the western side of Schedule-B land, a tin-roofed house in the southern side, etc. by spending about 2 (two) lakhs. In the additional written statement filed, it was stated that plaintiff had endorsed his note with signature in the concerned Chitha which was duly recorded and the mutation order was passed with the consent of the plaintiff himself. It is further stated that the plaintiff had not challenged a memorandum with regard to Scheduled-B land, ordered at the instance of the learned trial Court.