GIRIBALA CHOUDHURY AND ORS. Vs. USHANGINI DEBI

JUDGEMENT

(1.) THIS appeal is by the defendants and is directed against the decision of Sri M.K. Barkataki, the then Additional District Judge, Lower Assam Districts who, on appeal, affirmed the decision of Mr. D.N. Hazarika, the then Subordinate Judge.

(2.) THE appeal was originally placed for hearing on 7 -7 -53 before Deka J. sitting singly. At the instance of the learned Judge, it was then put up for hearing before a Division Bench of the Court presided over by Ram Labhaya and Deka JJ. who after hearing the appeal reserved judgment of 16 -11 -53. They finally delivered separate and differing judgments on 11 -5 -54. Ram Labhaya J. was of the opinion that the decree of the lower appellate court should be maintained and the appeal should be dismissed. Deka J. however, thought that the appeal should be allowed and the case should be remitted to the lower appellate court for re -hearing of the appeal on merits. In the result, on account of the difference, the appeal had to, be heard by me.

(3.) THE material facts of the case are rather simple. The plaintiff who is the widow of late Durga Das Bhattacharjya prayed for declaration of her title to certain lands described in the schedule to the plaint covered by Nisfikhiraj Periodic Patta No. 2 of village Nij -Bhabanipur, Mauza Bhabanipur. She also prayed for permanent injunction restraining the defendants from interfering with the possession and management of the lands. Briefly put, her case was that her late husband was co -sharer proprietor of many mahals, including the disputed lands, covered by several joint pattas. Gopinath Choudhury since dead, the predecessor -in -interest of the defendants was the agent and Am -Mokhtar appointed by her late husband and as such, the said Gopinath collected revenue and rent, looked after the management of the lands and conduct of suits relating to the said mahal, while plaintiff's husband spent most of his time abroad.