TRAILOKYA NATH Vs. PRAIKSHIT DAS

JUDGEMENT

(1.) By this Second Appeal the defendants of Title Suit No. 122 of 2002 has challenged concurrent findings of the learned Courts below whereby, claim of the defendants over Schedule C land covered by Dag No. 439 measuring 2Katha 16 Lechas by unregistered sale deed was rejected and the suit of the plaintiffs for declaration of his right, title and interest and recovery of possession over the land was decreed.

(2.) Decree of the suit of the plaintiffs in respect to claim of 2Katha 16 Lechas pertaining to Dag No. 439 of Mouza Howli under Barpeta District has been challenged by the defendant No.2 in this present Second Appeal. The plaintiffs who are 8 in number, being legal heirs of one Suk Charan Das instituted Title Suit No. 122 of 2002 in the Court of learned Civil Judge, Junior Division, Barpeta against Trailakya Nath and his 2 brothers. According to the plaintiffs land measuring 5 Bigha 2 kathas described as Schedule A to the plaint and covered by 3 Dags, namely, Dag No. 437 (Annual), Dag No. 438(Periodic) & Dag No. 439 (Annual) was originally owned by 2 brothers, namely, Suk Charan Das and Mahindra Das. The brothers got the land amicably partitioned in 2 halves each getting 2Bigha 2Kathas 11Lechas of land. Plaintiffs got Northern half of A Schedule land which is the B Schedule land. The share of plaintiffs in Dag No. 437 was to the extent of 2Kathas 11/2 Lecha. In Dag No.438, it was 1Bigha 2Katha 13 1/2 Lechas and in Annual Dag No. 439 it was 2Katha 16 Lechas. The grievance of the plaintiffs was that Mon Mohan Nath, the predecessor of the principal defendants, illegally obtained Chita Mutation with respect to aforesaid C Schedule land without having any title therein. This C Schedule land is a part of B Schedule land. Once mutation was obtained on 07.07.1992, the foundation of the untanable claim of the defendants was laid in pursuance whereof all them started attempts to dispossessed the plaintiffs from C Schedule land since 12.12.1999 and ultimately dispossess the plaintiffs from the entire B Schedule land including C Schedule land on 02.01.2000. The plaintiffs, therefore, made a prayer for declaration that they have exclusive right, title and interest over B Schedule land and are entitled to Khas possession thereof including C Schedule land by evicting the defendants who are known as trespasser. The defendants decided the suit by filing written statement. The defendants claim that in the year 1974 Suk Charan proposed to sell 1Bigha 2Katha 10Lechas of covered by Dag No. 438 and 2Katha 2 1/2 Lecha covered by Dag No. 437 in favour of Mon Mohan Nath, father of the principal defendants. The registered sale deed was executed on 24.05.1974 for 1Bigha 2Katha 10 Lechas periodic patta land under Dag No. 438 on consideration of Rs.600/- whereas 2K 1 1/2 Lechas land covered by Dag No. 437 being Annual Patta land was verbally sold to Mon Mohan Nath on consideration of Rs.80/-. Possession of both the plots of land was handed over to Monomohan Nath on 24.05.1974. The 2Kathas 16Lechas of land covered by Dag No. 439 which is also Annual Patta land was really being used as passage for going to land under Dag No. 437 and Dag No. 438 purchased by the defendants. The plaintiffs started using the land under Dag No. 439 as passage and ultimately by intervention of the village elders the plaintiffs sold the land to the defendants on 04.06.1992 by a Katcha deed and handed over possession. The plaintiffs thus did not have title and possession over entire schedule B land. The defendants prayed for dismissal of the suit in entirety.

(3.) Upon consideration of the rival contentions of the parties, the learned trial court framed as many as 9 issues out of which issues No. (iii), (iv), (v) & (vi) are relevant. All the issues are quoted below: