NANDADULAL NATH Vs. PRADIP NATH AND ORS.

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree dated 17 -04 -2009 passed by the court of learned Civil Judge, Dhubri in Title Appeal No. 72/2006 reversing the judgment and decree dated 19 -09 -2006 passed by the Munsiff No. 3, Dhubri in Title Suit No. 585/2003 whereby the suit filed by the respondent/plaintiff was earlier dismissed by the Trial Court.

(2.) THE case of the plaintiff as projected in the plaint is that their predecessor -in -interest Parasuram Nath was the owner -in -possession in respect of a plot of land measuring 2 kathas covered by Khatian No. 100 pertaining to Dag No. 185/628 and 185/633 of village - Bidyapara Part -II Revenue Circle, P.S. Dhubri in the State of Assam, more fully described in schedule -A to the plaint. During his lifetime Parasuram Nath had sold a plot of land measuring 10 lechas covered by Dag No. 633 to the principle defendant whereafter the remaining land covered by the said dag remained in possession of the owner as a vacant land. Although the defendant Nandadulal Nath had purchased only 10 lechas of land from the predecessor of the plaintiff, yet, he had got his name mutated in respect of 15 lechas of land in a fraudulent manner and in collusion with the revenue authorities. Thereafter, a "katcha patta" was issued in favour of the said defendant covering the excess area of 5 lechas of land. Having come to know about the said fraudulent act on the part of the defendant, the plaintiff raised objection before the Asstt. Settlement Officer, Dhubri praying for cancellation of the mutation as well as the "katcha patta" issued in favour of the defendant covering the excess land of 5 lechas belonging to the plaintiff. On the basis of such objection the Asstt. Settlement Officer, Dhubri had passed an order dated 28 -11 -2003 cancelling the patta issued in favour of the defendant. Thereafter, in the month of December, 2002 the defendant had encroached upon a plot of land measuring 3 lechas belonging to the plaintiff, described in the schedule -D to the plaint and erected a shed with CI sheet roof thereupon. When the plaintiff had asked him to vacate the same on 30 -01 -2003, the defendant flatly refused to do so, as a result of which the plaintiffs were compelled to institute the present title suit praying for a decree declaring their right, title and interest over the schedule -C land covered by Dag No. 185/633 of Khatian No. 100 which is under the illegal occupation of the defendant.

(3.) DURING the course of trial the plaintiff side had adduced both oral and documentary evidence. The defendant had also cross -examine the plaintiff's witnesses. After hearing the learned counsel for the parties the Trial Court have passed judgment and order dated 19 -09 -2006 dismissing the suit filed by the plaintiff, inter alia, on the ground that copy of the Final Khatian No. 100 (Exhibit -1) having been collected on 02 -11 -1989 was a very old document and hence, no reliance can be placed upon the said document for the purpose of presiding the claim of the plaintiff. The learned Trial Court was also of the opinion that the plaintiff side had failed to prove their case since the sale deed by means of which their predecessor Parasuram Nath had sold 10 lechas of land to the defendant had not been produced by them so as to prove and establish that Parasuram Nath had sold 10 lechas of land to the defendant No. 1 and not 15 lechas.