JYOTISH DEKA Vs. GAJENDRA DEKA

JUDGEMENT

(1.) Heard Mr. D. Choudhury, learned counsel for the appellants. Also heard Mr. B. Banerjee, learned Senior Counsel assisted by Mr. S.K. Mukhtar, learned counsel for the respondents.

(2.) This appeal is by the plaintiffs against the judgment and decree dated 20.01.2005 passed by the learned Civil Judge (Sr. Divn.), Nalbari in Title Appeal No.17/2004 allowing the appeal of the defendant and reversing the judgment and decree dated 28.06.2004 in Title Suit No.22/01 passed by the learned Civil Judge (Jr. Divn.) No.1, Nalbari, whereby suit of the plaintiffs was partly decreed without cost.

(3.) The case set out by the plaintiffs is that father of the plaintiffs, namely, Rajendra Deka and Gajia @ Gaji were brothers. Gaji was untraced for 30/35 years and as such the plaintiffs' father was possessing the entire land in K.P. No.189 of Village- Narayanpur. There is 2 Bigha 9 Lecha, 1 Bigha 4 Katha and 1 Bigha 2 Katha 11 Lecha, in Dag Nos.62, 76 and 94 of K.P. No.189, respectively, totaling 5 Bigha 2 Katha. Defendant has his land near the said plots of land in a different Dag and Patta. Father of the plaintiffs died about 4 years back from the date of filing of the suit, that is to say, around 1997. After demise of the father, plaintiff No.2 was taking care of the suit land and while depositing land revenue, on 19.02.2001, he came to learn that defendant got his name mutated in place of plaintiffs' father in Schedule 'Kha' measuring 1 Bigha 4 Katha land in Dag No.76 of K.P. No.189 and the name of the father was also mutated in place of Gaji by right of inheritance in Schedule 'Kha' land. It is averred that defendant had mutated his name in place of the father of the plaintiffs by right of purchase. The father of the plaintiffs had never sought for any mutation in respect of 'Kha' Schedule in place of Gaji. On being protested by the plaintiffs, defendant acknowledged that he had mutated his name and denounced the title of the plaintiffs. Accordingly, plaintiffs filed the suit.