AMARENDRA DUTTA Vs. TARUN CHANDRA DUTTA

JUDGEMENT

(1.) IN this Regular First Appeal the defendants of Title Suit No. 25 of 2005 have challenged the judgment and decree dated 23.08.2007 passed by the learned Civil Judge, Lakhimpur. By that judgment the suit of the plaintiffs was decreed and the counter -claim filed by the defendants was dismissed.

(2.) TARUN Chandra Dutta and his son Mukul Dutta as plaintiffs instituted Title Suit No. 25 of 2005 in the Court of learned Civil Judge (Senior Division) on 23.12.2005 stating that the land described in schedule to the plaint measuring 3 Bigha 4 Katha 5 Lehas covered by Dag No. 667 of K.P. Patta No. 220 of Lakhimpur Mouza Part -3 belongs to them and that they have a patta in the name of the plaintiff No.1 in respect of that land. The plaintiffs had been enjoying the land since beginning and the plaintiff No.2 who is an educated employed youth obtained loan with respect to the said land from State Bank of India by keeping the land under mortgage. While securing the aforesaid loan, bank made necessary inquiry and its panel advocate through Ghanashyam Saikia submitted report on 21.06.1999 to the effect that the plaintiff No.1 is recorded pattadar of the land and that the plaintiffs are in possession of the land. The loan was subsequently liquidated and the land was released from mortgage. Thereafter, the plaintiffs wanted to sale the land and for that purpose submitted application before the Lakhimpur Development Authority as well as Circle Officer Lakhimpur for necessary Noobjection certificate. The defendants at that time created problem in the peaceful possession of the plaintiffs over the suit land for which plaintiffs filed an FIR before the North Lakhimpur Police Station leading to registration of a case being Misc. Case No. 60 of 2005 under Section 145 of Cr.P.C. in the Court of Smt. Kalpana Deka, the Executive Magistrate at North Lakhimpur. The Executive Magistrate passed an order permitting the defendants to cut away the paddy from the land and thereupon, the plaintiffs sustained loss to the tune of Rs.5,000/ -. It is asserted that the defendants do not have any right, title and interest to the land and they had never possessed the same in any point of time or prior to 14.12.2005. The suit land remained under possession of the plaintiffs and it is only thereafter the defendants had possessed the same. With these averments of facts, the plaintiffs prayed for a decree declaring their right, title and interest over the suit land, for recovery of Khass possession by evicting the defendants and for declaration that judgment and order passed by the Executive Magistrate in M.C. No 60 of 2005 under Section 145 of Cr.P.C. on 14.12.2005 is illegal, inoperative etc.

(3.) ON being summoned the defendants appeared and submitted written statement denying the case of the plaintiffs. According to the defendants the land originally belonged to Jewram Das @ Dutta, the father of the defendants and Plaintiff No.1 and after his death the land was amicably partitioned between the father of the plaintiff No.1 and the father of the defendants in the year 1939 and since then they have been peacefully enjoying the same. The suit land fell in the share of Nandeswar Dutta, the deceased father of the defendants and that neither Devandra Nath Dutta, the father of the plaintiff No.1 nor the plaintiffs have ever been in possession of the land. The defendants further stated that while plaintiff No.2 prayed for loan before the State Bank of India the defendants submitted objection and thereupon, it came to light that the land had been under the possession of the defendants. The state Bank of India asked the plaintiffs to return the loan and thereupon, the plaintiffs compromised the matter with the bank by refunding the loan amount. According to the defendants, the Executive Magistrate after considering all the evidence on record and after inspection of the suit land arrived at the finding that the land has all along been in possession of the defendants and that the plaintiffs were never in possession thereof, so there was no mistake or error in the decision of the Executive Magistrate.