SUSHILA BALA BORA Vs. BHAGABAN CH. DAS

JUDGEMENT

(1.) This second appeal arises out of judgment and decree dated 01.08.2006 passed by the learned District Judge, Barpeta in Title Suit No. 13/2005 allowing the appeal filed by the defendants by setting aside the judgment and decree dated 31.08.2005 passed by the Civil Judge (Sr. Dn.), Barpeta in Title Suit No. 2/2004. The case of the plaintiff as projected in the plaint is that a land measuring 1B 4K 1L covered by N.K. Patta No. 2 of Dag No. 606 of Mouza Subend, Barpeta Town is standing in the name of "Idol Shyam Rai Bigraha". Ananta Kr. Das was a occupancy tenant in respect of the said plot of land who used to regularly pay tax to the landlord by obtaining receipt. After the death of Ananta Kr. Das the names of legal heirs i.e. the plaintiffs had been recorded on 05.02.2003 only in respect of 2K 10L. However, the remaining portion of the land has not been mutated in the name of the plaintiffs although the entire land ought to have been recorded in their names. It is the claim of the plaintiff that they have been in possession of the land all along. However, on 25.10.2001, the names of Late Hari Das as well as Bhagaban Ch. Das were recorded in respect of the suit land in most fraudulent manner even though plaintiffs were in possession of the land. Being embolden by such order of mutation, the defendants have dispossessed the plaintiffs from 4K 1L area of land and constructed two houses thereupon. The rest 1B land is still under possession of the plaintiff. On 15.01.2004 the plaintiff requested the defendants to deliver and vacate the possession of said area of land measuring 4K 1L, described in schedule-B of the plaint, but the defendants refused to do so. Hence, this present suit.

(2.) The defendants contested the suit filed by the plaintiffs by filing their written statement wherein they have taken the formal plea such as want of cause of action, suit being barred by limitation as well as under Assam Land and Revenue Regulation Act. In their written statement the defendants have also averred that the suit land belongs to the defendant No. 1, 2 and 3 who are the occupancy tenants since long time and hence the names have also been mutated on the basis of which their possession over the land as occupancy tenants. Defendants have denied that Ananta Kr. Das was a tenant in respect of the suit land. It is their pleaded case that despite proper service of notice plaintiffs did not file any objection in MC No. 52/200-01 and therefore they cannot now question the mutation granted in favour of the defendants. It has also been alleged that the mutation has been granted to the defendant No. 2 and 3 and therefore it is apparent that plaintiff do not even have knowledge about the land which has been possessed by the defendant since 1961. The houses had been constructed by the defendants in the year 1961 wherein they have been residing with their families. The defendants claimed that the land has been amicably partitioned and thereafter each of the co-sharers had been put in possession. The plaintiff never objected to such possession of the land by the defendants nor is there any explanation as to why they remained silent for such a long period of time. Defendants have, therefore, prayed that plaintiffs suit is devoid of any merit and hence liable to be dismissed.

(3.) On the basis of the pleadings of the parties the learned Trial Court had framed as many as 6 issues: