BABUL BORA Vs. TULESWAR BORA

JUDGEMENT

(1.) This Second Appeal has been filed against the judgment dated 17.08.2004 and decree dated 21.08.2004 passed by the learned Additional District Judge, Nagaon in Title Appeal No. 3/2002 dismissing the appeal and affirming the judgment dated 22.01.2002 and decree dated 28.01.2002 passed by the learned Civil Judge (Senior Division), Nagaon in Title Suit No. 41/1999. The brief facts of the case emerging from the records are that plaintiff had purchased a plot of land measuring 1 bigha 15 lechas covered by dag No. 52 of P.P. No. 169 of village Afutali under Pakhimoria mouza in the district of Nagaon from its registered owner Rudraram Bora i.e. the proforma defendant No. 2, by means of a registered deed of sale No. 1403/98 dated 22.09.1998 for a consideration of Rs. 42,000/- pursuant whereto the possession of the land was delivered to him. The aforesaid plot of land measuring 1 bigha 15 lechas described in the schedule to the plaint is the suit land. Originally four brothers, namely, Umesh Bora, Rudraram Bora, Bhogram Bora and Jiban Bora owned certain plots of land under four different Dags of Patta No. 169. Pursuant to an amicable settlement between the brothers, the suit land covered by Dag No. 52 fell into the share of the proforma defendant No. 2, Rudraram Bora. The defendant No. 1 is one of the sons of Rudraram Bora who was disowned by his father as he disobeyed his father. After the sale deed was executed by the proforma defendant No. 2, the defendant No. 1 dispossessed the plaintiff from the suit land by forcefully entering into the same and illegally occupied the land by constructing a house on a part of the land thereby denying the right, title and interest of the plaintiff over the suit land. Hence the suit by the plaintiff for declaration of right, title and interest over the suit land, for recovery of possession by evicting the defendant No. 1 and for other consequential reliefs.

(2.) The defendant No. 1 contested the plaintiffs suit by filing his written statement whereby he had questioned the maintainability of the suit, inter alia, on the ground of non-joinder of necessary party; the suit being barred by limitation and claimed the property by adverse possession. The defendant No. 1 had denied the execution of the sale deed by his father and also denied the fact that there was any mutual partition of the properties between the four brothers pursuant whereto the proforma defendant No. 2 ever possessed the suit land. It is the case of the defendant that the plaintiff had got the sale deed executed in a fraudulent manner by misleading his father. It was further pleaded in the written statement that the defendant No. 1 was driven out as he married against the wishes of his father. It is the case of the defendant No. 1 that since the entire property was being looked after by his uncle Bhogram Bora, hence, considering the helpless condition of the defendant his uncle Bhogram Bora and other brothers relinquished their right and possession over the land and permitted the defendant No. 1 to remain in possession thereof. Accordingly, he has been living in the suit land since last 13/14 years by constructing a house, planting trees and also by digging up a fishery. The defendant No. 1, therefore, claimed to have acquired title over the suit land by adverse possession.

(3.) It may be mentioned herein that Rudraram Bora, then alive, was impleaded in the suit as the proforma defendant No. 2 whereas the proforma defendants No. 3 to 7 were the legal heirs of the other three brothers, namely, Umesh Bora, Bhogram Bora and Jiban Bora. Despite due service of summons none of the proforma defendant No. 2 to 7 contested the suit filed by the plaintiff.