SARAT BALA DEKA Vs. NARAYAN BAISHYA

JUDGEMENT

(1.) THIS Second Appeal has been preferred by the plaintiffs challenging the First Appellate Court judgment and decree whereby the suit of the plaintiff was dismissed by the First Appellate Court reversing finding of the learned trial court decree.

(2.) THE plaintiff, Lankeshwar Deka, instituted Title Suit No. 286 of 1992 in the Court of learned Munsiff No. 3, Guwahati, stating that suit land measuring 1 Bigha was owned and possessed by him from its original owner Lohit Chandra Moral by registered sale deed No. 60 of 1974 dated 04.01.1974. It is the case of the plaintiff that he was in the service of the Government of Assam and his service was a transferable one. He claimed to have retired on 01.07.1990 and thereafter, decided to raise a residential house on the part of the aforesaid land measuring 1 Bigha. But the principal defendant No. 1 encroached the C Schedule land measuring 4 Chatarks by force and converting the same into a path. Land described in Schedule B & Schedule C are parts of Schedule A which is claimed to have purchased by the plaintiff on 04.01.1974 by registered sale deed No. 60 of 1974. The plaintiff claimed to have approached the learned Executive Magistrate by invoking Section 145/146 of the Code of Civil Procedure leading to restoring of 432 of 1991 but the same was against him on 01.08.1992 observing that C Schedule land is a public path in use by the people of locality for connecting Barbari Hills village to the P.W.D. road. Aggrieved by the order passed by the Executive Magistrate, plaintiff filed the suit praying for declaration of his right, title and interest over Schedule B land and for confirmation of possession there on. On the order passed by the learned trial court proforma defendants No. 1 to 8 were impleaded in the case who also participated in the proceeding. In the written statement, it was the specific stand taken by the defendants that Schedule C land is a part of public path which connects the P.W.D. road with Barbari Hills Gaon over the land of so many parties including the defendants. While land owners of other lands do not have any objection for use of the land by the public for over 40 years, it is the plaintiff alone who has been raising objection after 40 years. The defendants prayed that the suit be dismissed with cost. Upon perusal of the rival contention of the parties the learned trial court framed as many as 7 issues which are quoted below:

(3.) THE learned trial court after perusal of the materials available on records and after hearing the learned counsel for the parties held that the plaintiff undoubtedly purchased the suit land by registered sale deed dated 04.01.1974 and no one has raised any doubt about title of the plaintiff over scheduled land. Without making any discussion in regard to evidence led by the defendants oral and documentary, the learned trial court held that road exists since 1990 -91 and not in time immemorial and/or for 40 years ago as claimed by the defendants in the written statement. Having found the same, learned trial court decreed the suit of the plaintiff in its entirety by judgment and decree dated 23.12.1997. Five of the defendants including the defendants No. 1 preferred Title Appeal No. 2 of 1998 in the Court of learned Civil Judge (Senior Division) No. 2, Kamrup, challenging the finding of the learned trial court in regard to nature and character of Schedule C land. The appellants claimed that Schedule C land was part of a public path in use by the people of Barbari Hills village for more than 40 years. Having heard the learned counsel for the parties, the learned First Appellate Court allowed the appeal by his judgment and decree dated 30.03.2002 holding that on the basis of the deposition made by P.W. 2 & P.W. 3 it has been established that the scheduled land is a road and is being used by the public for over 20 to 25 years. The learned First Appellate Court also observed that, the trial court did not consider the oral and documentary evidence of the 4 witnesses examined by the side of the defendants and so, the trial court's judgment and decree is vitiated. The First Appellate Court, therefore, set aside the decree passed by the learned trial court and dismissed the suit of the plaintiff holding that Schedule C land is a part of public path being used by public for over period of limitation for connecting Barbari Hills Gaon to the P.W.D. road. It is this judgment which has been brought under challenge in this Second Appeal.