BHUPEN GOGOI Vs. LAKHIRAM BHUMIJ & ANOTHER

JUDGEMENT

(1.) Plaintiff'S case is that the predecessor-in-interest of the defendants viz., Late Budhu Bhumij was the occupant of a plot of land measuring 2 bigha 15 lechas covered by dag No.1631 and 1632 of annual patta No.98 of Lahongaon under Anthkhel mouza whereas the plaintiff was the owner in possession of a plot of land measuring 2 bighas covered by dag No.506 of periodic patta No.55 of Morangaon under Anthkhel mouza, described in schedule to the plaint, which is the suit land. Since the land belonging to Budhu Bhumij, as aforesaid, was located near the land owned by the plaintiff and vice versa, Budhu Bhumij and the plaintiff arrived at a mutual understanding to exchange possession of their respective plots of land for the sake of convenience of both parties and accordingly Budhu Bhumij had executed an unregistered deed of exchange (Ext-Ka) whereby the plaintiff was put in possession of the 2 bigha 15 lechas of land occupied and possessed by Budhu Bhumij. Similarly, by executing another unregistered deed of exchange the plaintiff had put Budhu Bhumij in possession in respect of the suit land. It is, however, mentioned in Ext-Ka and Kha that the parties would take a decision regarding continuance of this exchange of possession on a future date. Thereafter, in the year 1983 Budhu Bhumij had converted his annual patta land, as aforesaid, into periodic patta and thereafter, sold the same to the son of the plaintiff for valuable consideration. The plaintiff's further case is that since Budhu Bhumij had sold the land in violation of the condition of exchange, therefore, plaintiff wanted to regain possession of his land. When he had approached the wife of Budhu Bhumij to repay the amount of Rs.700/-, on the advice of Janu Bhumij, she had refused to accept the money and rather insisted on renewal of the lease whereby it was agreed that the possession of the suit land would be delivered to the plaintiff in the year 1989 and an agreement to that effect was also executed by Janu Bhumij on 15.02.1984 in presence of witnesses. Accordingly, the wife of Budhu Bhumij had handed over possession of the suit land to the plaintiff in the year 1989. However, later on, while the plaintiff himself was cultivating the land, on 21.06.1994 the defendants had trespassed into the suit land and dispossessed the plaintiff for which the plaintiff was compelled to initiate Misc. Case No.15/1994 under Section 145 Cr.P.C. at Najira Court. Eventually, the plaintiff had filed the Title Suit seeking declaration of right, title, interest and for recovery of possession in respect of the suit land.

(2.) The defendant Nos.1 and 2 had contested the suit by questioning the maintainability of the same on the ground of want of cause of action as well as non-joinder of necessary parties. The defendants, although admitted the fact that in the year 1974 there was an exchange of the suit land with the plaintiff made by Budhu Bhumij i.e. the father of the defendant No.2, whereby land measuring 2 bigha 15 lechas belonging to Budhu Bhumij was handed over to the plaintiff in lieu of the suit land, the defendants, however, categorically denied the fact that they had ever sold the land as claimed in the plaint. The defendants had also categorically denied that they had ever trespassed into the suit land and dispossessed the plaintiff forcibly. On the contrary, the defendants have claimed to have been in peaceful possession of the land since 1974 and they have also denied that the plaintiff has been cultivating over the land.

(3.) Based on the pleadings of the parties the learned trial Court had framed as many as eight issues, which are as follows :-