RAHMAT ALI Vs. ANWARA BEGUM

JUDGEMENT

(1.) THE only substantial question of law that is required to be answered in this case is as follows:

(2.) THE factual matrix of the case is required to be stated in nutshell before venturing to answer the substantial question of law. Plaintiffs instituted Title Suit No. 143 of 1985 in the Court of learned Munsiff No. 1, Hailakandi claiming that land measuring 11 bighas 5 kathas covered by Dag No. 296 of Patta No. 40 of second R.S. Patta of Mouza Burnibridge was the property of defendant No. 5 where from one Shibcharan Rajbhar took settlement for agricultural purpose as he was a driver of the Tea Estate. Shibcharan Rajbhar was issued Khaitan No. 58 by the settlement authority in recognition of his being in possession of land as agricultural tenant under the original owner. He sold the land to plaintiff No. 2 on 05.06.1975 by unregistered Kabala and gave possession. However on 07.09.1978 Khaitandar executed a registered sale deed in favour of plaintiffs. The plaintiffs being in possession continued enjoying the same when in the year 1978 defendants sought to dispossess them from the suit land. Aggrieved thereby, plaintiff No. 2 instituted a proceeding under Section 145 Cr.P.C. before the Executive Magistrate at Hailakandi vide Case No. 155/1978. Executive Magistrate declared possession of the plaintiff on 24.07.1980. The defendants challenged the order of the Executive Magistrate before Sessions Judge, Cachar at Silchar which on being dismissed a revision petition was filed before this High Court which was also eventually dismissed. It was the case of the plaintiffs that the defendants did not challenge order passed by the hierarchy of the courts earlier in proceeding under Section 145 Cr.P.C. and consequently plaintiffs continued in possession but thereafter in the year 1985 the defendants started announcing that they will cut away the paddy grown by the plaintiffs over the suit land and they shall also dig tank, drainage etc. on the suit land and also build house so as to dispossess the plaintiffs. Such declaration having been made on or around 15.11.1985, plaintiffs became alarmed and instituted aforesaid Title Suit No. 143/1985 praying for decree for declaration of their rights, title and interest over the land in question and also for injunction restraining the defendants from dispossessing the plaintiffs from the suit land. It appears from records that during pendency of the suit prayer for amendment was made for incorporation of prayer for recovery of khas possession on the allegation that plaintiffs were dispossessed from the suit land by the defendants during pendency of the suit. By amendment of plaint, plaintiffs also made prayer that purported document issued by the defendant No. 5, Tea Estate on 31.12.1966 was fabricated, forged and illegal. Defendants No. 1 and 4 appeared and filed two separate written statements. Suit proceeded ex -parte against defendants No. 2, 3 and 4. It is the case of the defendant No. 1 that he being Choukidar of the Tea Estate, he was settled with 10 bighas of land out of 11 bighas 10 kathas referred to above. The defendant No. 4 claimed that he possessed 1 bigha 10 kathas of land which is outside the suit land. On the basis of the aforesaid pleadings, learned trial Court framed as many as 6 (six) issues which are quoted below:

(3.) PLAINTIFFS , examined as many as 10 witnesses and exhibited 32 documents. The defendants on the other side examined 4 witnesses and exhibited 23 documents.