(1.) THIS second appeal at the instance of the defendant of Title Suit No. 182 of 1998 of the Court of learned Civil Judge (Junior Division) No. 2, Karimganj is directed against concurrent findings of the learned Courts below.
(2.) PLAINTIFF , Baroda Kumar Dutta instituted Title Suit No. 182 of 1998 in the Court of learned Civil Judge (Junior Division) No.2, Karimganj praying for declaration of his right, title and interest with respect to a plot of land measuring 1 Kedar 2 Pawas and also for recovery of khas possession by evicting the defendant and dismantling their structure standing on the suit land. The plaintiff made a prayer for declaring his right as land holder over the land in question. It was the case of the plaintiff that one Sadhan Chandra Das who had been Jotdar of the aforesaid land in question under original proprietor Dewan Manik Chand Court of Wards' Estate in the district of Karimganj executed two registered sale deeds on 30.12.1966 and 29.12.1986 transferring whole of 1 kedar 2 powa of land in favour of the plaintiff. Pursuant to such transfer plaintiff came into possession of the land and thereby obtained settlement from the Government. Periodic patta was issued in the name of the plaintiff by the Government by way of settlement operation vide Khaitan No. 127. It is the further case of the plaintiff that one Sunil Roy approached him for using the land as permissive occupier and thereafter in the first part of the year 1987, defendant also approached him for giving shelter. The plaintiff permitted him to occupy the land by making temporary structure but when asked to vacate the land within December, 1997, defendant refused to go and later on, raised an unauthorized permanent structure on the land. Under Such circumstances the plaintiff instituted the suit for declaration of his right, title and interest as a land holder and also for recovery of khas possession by evicting the defendant and dismantling the structure made by him over the suit land. On being summoned the defendant appeared and denied the case of the plaintiff. According to the defendant, plaintiff did not have any right over the suit land. The defendant claimed that he was occupying the land adversely to the interest of one Ram Kumar Suklabaidya and neither Sadhan Chandra Das nor the present plaintiff had possessed the land in any point of time. The plea of the plaintiff that the defendant was not a permanent occupier was specifically denied by the defendant. Upon such rival contentions of the parties the learned trial Court framed as many as 7 issues. The learned trial Court, therefore, framed 2 additional issues also. All these 9 issues are quoted below:
(3.) THE plaintiff examined 3 witnesses including himself and defendant examined 2 witnesses including himself. Plaintiff has adduced 8 documents as Ext. -1 to 8. Defendant also adduced 8 documents as Ext. - A to H. After perusal of the evidence and on hearing the argument of the learned counsel for the parties, the learned trial Court by his judgment and decree dated 29.06.2002 decreed the suit declaring right, title and interest of the plaintiff over the suit land on the basis of Ext. -2 and Ext.5 sale deeds and also for recovery of khas possession by evicting the sole defendant. In so doing, the learned trial Court held that defendant could not prove his possession under Ram Kumar Suklaboidya and anybody else and plaintiff being a recorded pattadar proved his prima facie title. Defendant did not have any right, locus standi or authority to challenge the decision of the trial Court. Aggrieved by the aforesaid judgment and decree dated 29.06.2002 defendant preferred Title Appeal No. 17/2004 in the Court of learned District Judge, Karimganj who by judgment and decree dated 16.03.2005 dismissed the appeal. The learned first appellate court considered the pleadings of the parties as well as the documents of title including Ext. -1 (Khaitan) and Ext. -2 and 5 sale deeds. Relying on Ext. -1 Khaitan, the learned First Appellate Court observed at para 11 of the judgment that final Khaitan was in the name of the plaintiff / respondent and the defendant/ appellant could not establish his possession over the land under Ram Kumar Suklaboidya or that Ram Kumar Suklaboidya had any semblance of title to the land. In paragraph 12 of the impugned appellate judgment the finding is in regard to admission of the defendant that he has no land record pertaining to Khaitan No. 127 of Dag No. 498 which is the suit land. Having taken a positive stand that he was possessing the land adverse to the interest of Ram Kumar Suklaboidya it was his burden to prove that Ram Kumar Suklaboidya was the owner. The defendant failed to discharge his burden. The learned First Appellate Court further observed that during trial, plaintiff wanted appointment of survey commissioner to survey the suit land but because of resistance by the defendant no such order could be passed. Under such circumstances, the learned Court confirmed the finding of the learned trial Court as to title of the plaintiff and dismissed the appeal. It is against such concurrent findings of the learned Courts below the defendant has preferred second appeal before this Court. This Court while taking up the second appeal on 19.08.2005 framed two substantial questions of law and the same are quoted below: