ON THE DEATH OF ARABINDA SARMA, HIS LEGAL HEIRS AND OTHERS Vs. ON THE DEATH OF LANDARU ROY, HIS LEGAL HEIRS AND OTHER

JUDGEMENT

(1.) Appellant judgment and decree dated 19.04.2003 passed by learned District Judge, Bongaigaon in Title Appeal No. 26/1993 allowing the appeal and dismissing the Title Suit No. 40/1989 by reversing trial court decree, has been brought under challenge in the present second appeal.

(2.) One Arabinda Sarma, as plaintiff, instituted Title Suit No. 40/1989 in the Court of learned Munsiff at Bongaigaon praying for declaration that he is entitled to get Khas possession of the suit land by evicting the defendant with cost etc. Plaintiff stated that he purchased share of the suit land measuring 3 bighas 3 kathas 18 lechas covered by Dag No. 83 of final khatian No. 31 of Bongaigaon Deori para from Gopal Roy and Lengthu Roy, both sons of Late Haliram Barman on 22.03.1978 by registered sale deed vide No. 2027 at a consideration of 7000.00 and got possession thereof. The defendant Landaru Roy who is one of the descendants of the original owner sought to evict the plaintiff on 11.07.1978 for which plaintiff had instituted another title suit being T.S. No. 116/1978 in the Court of learned Munsiff No. 1 at Goalpara praying for declaration of right, title and interest and for prohibitory injunction restraining the defendant from dispossessing him from the suit land. Although his prayer for declaration of title was decreed by judgment and decree dated 30.05.1983 but his prayer for injunction was rejected by the learned trial court. The learned court in that suit observed that plaintiff not having made any prayer for khas possession, the same could not be decreed. It is the further case of the plaintiff that being emboldened by the judgment and decree dated 30.05.1983 in the former suit i.e. T.S. No. 116/1978 defendant was trying to sell the suit land and was also threatening the plaintiff not to enter into the suit land. In paragraph 6 of the plaint, plaintiff claimed that he is entitled to decree of khas possession by evicting the defendant. Plaintiff also claimed that cause of action for the second suit arose on 30.05.1983 when the former suit was dismissed. It is to be mentioned here that plaintiff having made prayer for khas possession of the suit land by evicting the defendant, did not make any disclosure as to when was he dispossessed from the suit land by the defendant.

(3.) On being summoned, defendant appeared and submitted written statement contesting the claim of the plaintiff. In paragraph 6 of the written statement defendant claimed to be in possession of the suit land by way of inheritance from the time of his father. On the basis of the rival contentions of the parties, learned trial court framed as many as 5 (five) issues which are quoted below:-