RAMDHANI CHOUHAN AND ORS. Vs. KARNA

JUDGEMENT

(1.) Heard Mr. P. Khataniar, learned counsel for the appellants. There is no appearance on behalf of the respondents on both the dates of hearing. The second appeal is presented against the judgment and decree dated 28.07.2005 passed by the learned Civil Judge (Sr. Dim), Nagaon in Title Appeal No. 19/2003, dismissing the appeal and upholding the judgment and decree dated 15.03.2003 passed by the learned Civil Judge (Jr. Divn.), Hojai in Title Suit No. 10/1999, decreeing the suit.

(2.) The plaintiff filed the suit for declaration of right, title and interest in respect of 10 Bigha of land out of which, 8 Bigha covered by Dag No. 15 and 2 Bigha in Dag No. 16 appertaining to Periodic Patta No. 53 of Matikhola Kisamat of Jugijan Mouza in Nagaon District for recovery of khas possession of the suit land, permanent injunction etc.

(3.) The pleaded case, in short, as projected in the plaint is that the plaintiff had purchased the suit land by a registered sale -deed dated 21.05.1983 executed by one Deo Narayan Nunia @ Chouhan and he was put in possession of the land sold. The land is in one block and the boundaries are also given in the Schedule to the plaint. It is also averred that in the sale -deed, Dag No. 15 had been inadvertently mentioned as Dag No. 25. The vendor died in the year 1988. Consequent upon purchase of the land, his name was also entered in the record of rights. The principal defendant No. 1 is the son -in -law and principal Defendant No. 5 is the daughter of Deo Narayan Nunia and principal defendant Nos. 2 to 4 are their sons. Two sons of Deo Narayan Nunia were also impleaded as pro forma defendant Nos. 6 and 7 along with another person as pro forma defendant No. 8. They were sought to be dispossessed on 17.07.1998 as well as in the month of February, 1998 by the principal defendant Nos. 1 to 5. However, such attempts were thwarted. Subsequently, by way of amendment of the plaint, it was pleaded that on 25.03.2000, the principal defendants dispossessed the plaintiff. By way of amendment of the plaint, it was also brought on record that on the date of execution of the sale -deed on 21.05.1983, the plaintiff had executed a registered Deed of Agreement promising to convey the said land to Deo Narayan Nunia on repayment of Rs. 9995.00 within 3 years from the date of execution of the deed of agreement. However, Deo Narayan Nunia did not take any steps for specific performance of contract during his lifetime. The stand taken in the written statement by the defendants apart from various legal pleas was that Deo Narayan Nunia never sold the suit land, but admitted that he had approached the plaintiff for loan of Rs. 9995.00 and the plaintiff had lent the said amount to Deo Narayan Nunia @ Chouhan on 21.05.1983 and he mortgaged the said land to the plaintiff as security for the loan and accordingly, had executed a registered sale -deed on 21.05.1983 with a condition that the plaintiff will reconvey the said land. The plaintiff had also executed a registered Deed of Agreement on 21.05.1983 being registered deed No. 3707 incorporating a condition that he would reconvey the land on repayment of loan of Rs. 9995.00. However, despite many requests made by Late Deo Narayan Nunia, the land was not reconveyed. It was also pleaded that possession of the suit land was not delivered to the plaintiff by Late Deo Narayan Nunia and that the suit land was possessed by the principal defendant No. 1, who became a "Ghar Jamai" (a son -in -law, who resides voluntarily in the house of father -in -law). He had planted jackfruits and constructed a house in Dag No. 16. In the additional written statement filed consequent upon the amendment of the plaint, it is averred that plaintiff had no possession and he cooked up the story of his possession.