JYOTINDRA BHATTACHARJEE Vs. SONA BALA BORA

JUDGEMENT

(1.) These two appeals arise out of a common judgment passed by the earned District Judge, Shillong in Title Suit No. 3(H)'78 and 12(H)79. Title Suit No. 3(H) was instituted by the appellant against the respondents 1 to 4 and 6 and 3 others. Respondent No. 6 was a pro forma defendant. Pro forma respondent No. 6 died during the pendency of the appeal. No steps were taken for substitution. However, all his heirs are on record and his estate is well represented - Title Suit No. 12(H)79 was instituted by respondents 1 to 5 against the pro forma respondent and the appellant - The suit filed by the appellant was dismissed with a direction to return the sum of Rs. 69,000.00 by respondent No. 1 (in FA 2(SH)'86) within a period of 6 months from the date of judgment. If, however, respondent No. 1 failed to pay the amount, the appellant would be entitled to realise the money as a decree.

(2.) Two suits were filed by both appellants and respondents Nos. 1 to 5. Title Suit No. 3(H)78 was filed by the appellant and the Title Suit No. 12(H)79 was filed by respondents Nos. 1 to 5. The appellant instituted the suit for a declaration of his right, title and interest in respect of the suit property, recovery of possession and also for recovery of mesne profit etc. 1st to 5th respondents, on the other hand, filed the suit for declaration that respondent-defendant No. 1 late Bhagirath Bora had no saleable right to transfer the entire property and also for other reliefs. Both the suit relate to the same subject matter, i.e. a plot of land measuring more or less 176 acres with three residential houses standing thereon, situated at Dakland, Shillong within the European Ward of the Shillong Municipality covered by Plot No. 31 and Patta No. 15.

(3.) The case o2 the appellant in his suit (Title Suit No. 3(H)78), inter alia, was that Bhagirath Bora was the absolute owner of the suit property and he purchased the said property at a consideration of Rs. 69,000.00 and late Bhagirath Bora executed a registered deed of sale in his favour. Thus he became the absolute owner of the said property. After execution of the registered sale deed Late Bhagirath Bora delivered possession by quitting from the cottage under his occupation and gave delivery of possession of the main house which Was lying vacant. However, 1st to 4th defendants picked up quarrel with late Bhagirath Bora after delivery of vacant possession of the cottage in his occupation and assaulted him. The matter was reported to the police and thereafter they illegally entered into the cottage by a back door and locked the door without legal and lawful authority. Besides they also broke open the lock put by the plaintiff-appellant in the main house and forcibly and illegally entered into the main house. The appellant further stated in his plaint that after the purchase of the property his name mutated in Mutation Case No. 99/77 vide Deputy Commissioner's order dated 24-10-77. At no point of time the respondent-defendants raised any objection to the grant of mutation in favour of the appellant even though they knew it fully. After the mutation the plaintiff's name was also entered in the assessment register of Shillong Municipality as owner of Holding No. 85 (Dakland European Ward of Shillong). The appellant further stated that the defendants Nos. 1 to 4 (respondents 1 to 4) after their wrongful entry into the cottage illegally occupied and also let out a portion of the said house on rent to respondent No. 5. The said respondents thereafter, inducted defendants Nos. 6 and 7 in the main house as tenant and commenced realisation of rent. Hence he filed a suit for declaration, etc.