KAMESWAR DEKA Vs. SURENDRA DEKA

JUDGEMENT

(1.) Heard Mr. D. Choudhury, learned counsel appearing for the appellant. The respondents counsel submits that they are not in touch with the clients and the record is also not available with them. Hence, they submits that this Court may pass appropriate order as per the materials available on record.

(2.) This second appeal has been filed against the concurrent judgment and decree dated 28-05-2004 passed by the learned Civil Judge (Sr. Div.), Nalbari in Title Appeal No. 02/2003 dismissing the appeal filed by the plaintiff/ appellant thereby affirming the judgment and decree dated 27-11-2002 passed by the learned Civil Judge (Jr. Div.) No. 1, Nalbari in Title Suit No. 06/1999.

(3.) The fact of the case as projected in the plaint is that the land described in schedule-'Ka' of the plaint is the ancestral property of the plaintiff's father. After the death of the plaintiff's father in the year 1994, the brothers of the plaintiff, i.e. proforma defendant No. 7, 8, 9 and 10 together with the plaintiff had inherited the schedule-'Ka' land, whereafter, their names have also been duly mutated in respect thereof in the revenue records. Since the plaintiff had been in possession of the suit land by constructing residential house thereupon, the other brothers of the plaintiff had relinquished their right over the suit land by executing a registered deed on 15-11-1994. It is the case of the plaintiff that the contesting defendant were never in possession of the suit land but notwithstanding the same they filed a mutation case bearing No. 19/97-98 in the office of the Circle Officer, Tihu praying for mutation of their name in respect of suit land on the basis of a registered deed of sale dated 27-10-1981 described in schedule-'Kha' of the plaint. The plaintiff submits that initially the learned Circle Officer passed an order dated 18-12-1997 allowing the prayer of the defendant No. 1 for mutation. The plaintiff had preferred an appeal before the Deputy Commissioner, Nalbari against the said order dated 18-12-1997 whereby the learned Deputy Commissioner, Nalbari had set aside the order of the Circle Officer, Tihu. The plaintiff further submits that it is in connection with the mutation case that the defendant No. 1 had exhibited the certified copy of the sale deed dated 27-10-1981 which was allegedly executed by one Haro Ram Kalita in his favour and the defendant No. 1 is claiming title over the suit land of the basis of said sale deed. The plaintiff had categorically stated in the plaint that the father of the plaintiff was late Hareswar Deka. Hareswar Deka and Haro Ram Kalita are not the same persons. He had further averred in the plaint that his father had never executed any deed in respect of the suit land in favour of anybody and, therefore, the plaintiff had instituted the suit praying for a decree declaring that the sale deed bearing No. 206/1981 dated 27-10-1981 is a fraudulent document; for confirmation of possession and for permanent injunction.