NUR MOHAMMAD Vs. ABDUL AHAD

JUDGEMENT

(1.) THE plaintiffs-petitioners have filed a suit under Section 6 of the Specific Relief Act, being Title Suit No. 32/1987, for recovery of Khas possession of the suit land alleging therein that they had filed a suit (Title Suit No. 107/83) for declaration of their title in respect of a portion of land purchased by them, measuring 2k, out of 3 Bighas, 1 Katha and 10 Lechas, within Dag No. 534, under Khatian No. 616 at Village Mankachar Part-I and for khas possession of the land described in Section-A to the plaint, on the allegations that the defendants in the year 1982 had dispossessed them. The suit was decreed by the trial Court by its judgment and decree dated 03-07-1985 and the Executing Court in Execution Case No. 25/85 delivered possession of the Schedule-A land to the plaintiff/petitioners on 05-08-1986. Even after delivery of possession, the defendant tried to dispossess the plaintiff/ petitioners, therefore, they had to file another Suit (TS No. 279/87) for perpetual injunction. The plaintiffs obtained interim order of injunction against the defendants and others. The defendants by violating the order of injunction entered into the Schedule-A land on 08-10-1987 and constructed two tin roofed houses and thereby dispossessed the plaintiffs from the suit land.

(2.) THE defendant filed his written statement raising the issues that the suit is not maintainable as there is no cause of action; that the suit is barred by limitation and barred by principle of waiver, estoppel and acquiescence and also barred under Section 6 of the Specific Relief Act. Objection to the jurisdiction of the Court to try the suit was also raised. It is further alleged by the defendant that the defendant has purchased 1 B-1k of land by two registered sale deed from, Banik Madhab Sil and his son Ranjit Kr. Sil and have been in possession of the land since 18/19 years and that he has been in possession of 2 Kathas of Khas land on the East of the PWD road besides the purchased land. That he was never evicted from the suit land in Execution Case No. 25/85 and never dispossessed the plaintiffs from the suit land on 08. 10. 1987. It is further alleged that the plaintiff purchased 3 B. 1 K 10 Lechas of land from Bani Madhab Sil and have been possessing about 4 Bighas of land and prayed for dismissal of the suit.

(3.) THE Title Suit No. 32/87 was decreed by the trial Court in favour of the plaintiffs and the said judgment and decree was challenged by the defendant by filing a revision in the High Court. The revision was registered as Civil Revision No. 348/92. The learned Single Judge set aside the judgment and decree passed by the trial Court and remanded back the case to the trial Court with a direction to appoint a competent Survey Commission to visit the spot and point out the actual boundary between the land covered by the decree passed in TS No. 107/83, i. e. the original suit, and the land of the defendant covered by the sale deed marked as Exhibits 'ka' and 'kha' in TS No. 32/87. It was further directed that the said Survey Commission after completing his enquiry, shall submit a report before the trial Court, which shall thereafter invite objections, if any, from the parties and upon hearing such objections, the Court shall decide the matter afresh as it thinks fit and proper. It is further directed that in course of such objections, parties are at liberty to adduce their evidence in support of their respective claims with regard to the report that may be submitted by the Survey Commission.