RANJIT KAKATI Vs. KRISHNA PRASAD KAKATI

JUDGEMENT

(1.) This second appeal at the instance of the plaintiff of Title Suit No. 32 of 1990 of the Court of learned Civil Judge (S.D.) at Barpeta is directed against the concurrent findings of the learned Courts below. Title Suit No. 32 of 1990 filed by the plaintiff for declaration of his right, title and interest and confirmation of possession was dismissed by the learned trial Court and the counter claim filed by the defendants praying for declaration of their right, title and interest and consequent eviction of the plaintiff from the suit land was decreed by the trial Court by judgment and decree dated 18.06.2001. Being aggrieved plaintiff preferred Title Appeal No. 28 of 2006 in the Court of learned Additional District Judge (F.T.C.) at Barpeta. The learned first appellate Court by his judgment and decree dated 14.09.2011 dismissed the appeal upholding the judgment and decree passed by the learned trial Court.

(2.) Plaintiff Paramananda Kakati instituted a suit against Krishna Prasad Kakati, Smt. Sashi Bala Kakati and Smt. Kamala Kakati, his brother and sisters respectively and also against Proforma Defendants No. 5 to 10 stating that a plot of land measuring 1 bigha 1 katha 3 lechas out of 4 bighas 4 kathas 12 lechas covered by Periodic Patta No. 456 of Dag No. 332 situated at village- Jaljali of MouzaGhilajari in the district of Barpeta with an Assam Type House standing thereon, originally belonged to his father, Baliram Kakati. After death of Baliram, his legal heirs including the plaintiff, the Proforma Defendant No. 4 and Gajendra Kakati inherited the property and they have been possessing the same. It is claimed that the plaintiff and Proforma Defendant No. 4 have right, title, interest and possession over the suit land and the plaintiff was paying revenue regularly. The names of plaintiff and the Proforma Defendants were duly mutated in the records of rights but the principal defendants without having any right, title, interest or possession over the suit land collusively obtained mutation in their favour in Mutation Case No. 126/1987- 1988 relying on a purported Will made by Baliram Kakati. According to the plaintiff the aforesaid Will dated 03.03.1969 was fraudulent and so no right, title and interest was accorded to the defendants on the basis of the said Will and consequently mutation order dated 19.09.1990 passed on the basis of the probate of the Will was also illegal and untenable. With these statements on fact, the plaintiff claimed that a decree be passed declaring his right, title, interest and confirmation of his possession and also for setting aside of mutation order dated 19.09.1990 by adjudicating the Will dated 03.03.1969 to be a fraudulent one.

(3.) On being summoned the principal defendants appeared and filed a written statement and contested the claim of the plaintiff. It was stated that the Will dated 03.03.1969 was duly presented before the probate Court by impleading the plaintiff and other legal heirs of Balram Kakati party but the plaintiff and Proforma defendant No. 4 even being aware of the fact chose not to contest the proceeding. It is under such circumstances and on being admitted by the other sons of Gajendra Kakati and the other sons of Baliram Kakati, the Will was duly probated. There was no appeal against the order passed by the probate Court and thus it attained finality. After the Will was probated, defendants prayed for mutation, vide Mutation Case No. 126/1987-1988 and the SDC, Barpeta allowed mutation to the defendants on 19.09.1990. The aforesaid probate order dated 08.02.1989 and consequent mutation on 19.09.1990 were well within the knowledge of the plaintiff and same having attained finality the suit was devoid of any cause of action and liable to be dismissed without any cause. The Proforma Defendants also filed a counter claim stating that plaintiff was not having any shelter and so he was permitted by the defendants to stay in their house and so plaintiff was at best a permissive occupier under the defendants without having any right, title and interest over the suit property and so a decree was claimed by way of counter claim for eviction of the plaintiff from the suit land and for holding that the defendants were the owner of the suit property. On the basis of the rival contention of the parties the learned trial Court framed as many as 8 issues which are quoted below: