KARUNA KAKOTI Vs. CHANDRA KANTA KUMBHAKAR

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and decree dated 06.06.2006 passed by the learned Civil Judge (Senior Division), Nalbari in Title Appeal No.2/2005 reversing the judgment and decree passed by the learned Civil Judge (Junior Division) No.1, Nalbari in Title Suit No.51/1996 decreeing the suit filed by the appellants/plaintiffs.

(2.) THE case of the appellants/plaintiffs in brief is that the plaintiffs are the owners in possession of the suit land described in Schedule - 'Ka' to the plaint as well as other properties, all of which are their ancestral properties. The defendant No.1 is a person of litigious nature and therefore, he has brought several proceedings against the plaintiffs including Title Suit No.37/1995 whereby the said defendant No.1 had claimed the suit land described in the schedule to the plaint. It is alleged that the defendant had managed to get mutation of his name in respect of some of the lands belonging to the plaintiffs behind their back. It was only on 05.06.1996 that the defendant had stated in his evidence, in connection with Title Suit No.37/1995, that he had purchased the suit land from the plaintiffs and therefore got his name mutated in respect thereof. It was from such evidence adduced by the defendant No.1 that the plaintiffs had, for the first time, come to know about the claim of purchase of the suit land by the said defendant pursuant whereto they had made enquires and thereafter learnt that the defendant No.1 had fraudulently included the suit land as well as other land belonging to the plaintiffs in the registered sale deed and thereafter got his name mutated. Since such claim of the defendant No.1 made in course of adducing evidence in Title Suit No.37/1995 had clouded the right, title and interest of the plaintiffs, hence the plaintiffs were compelled to institute the suit praying for declaration of their right, title and interest over the suit land included in the schedule to the plaint; to issue a precept for cancellation of registered deed of sale Nos.3793/79 and 1504/81 by declaring the same as forged and fraudulent; for a declaration that the decree passed in Title Suit No.37/1995 was void, inoperative in the eye of law; for confirmation of possession of the plaintiffs over the suit land and for other consequential reliefs.

(3.) THE defendant No.1 contested the suit by filing written statement, inter alia, taking various pleas pertaining to the question of maintainability of the suit. According to the defendant No.1, the plaintiff Nos.1 to 3 and the father of the plaintiff No.4 had executed a registered deed of sale No.3393/79 in favour of the defendant No.1 and sold away a plot of land measuring 1 Bigha 14 1/2 Lechas in total covered by K.P. No.138 dag No.956 for 3 Kathas; 1 katha 17 Lechas under dag No.957 of the same patta; 1 Katha 17 1/2 Lechas pertaining to dag No.186 of K P No.136. Pursuant to the execution of the registered deed of sale the possession of the land had also been delivered in favour of the defendant No.1 pursuant whereto he had got his name mutated in respect of the aforesaid plot of land. Thereafter, the plaintiff No.1 and the father of the plaintiff No.4 had executed another registered deed of sale bearing No.1504/81 dated 18.02.1981 in favour of the defendant No.1 transferring by way of sale land measuring 2 Bighas 1 Katha 2 1/2 Lechas in total in the following proportion - - - 3 Kathas 15 Lechas of land under KP No.138 of dag No.186; 1 Katha 17 1/2 Lechas of land under dag No.959 of KP No.138 and 4 Kathas of land under dag No.243. Again they sold 1 Katha 10 Lechas of land pertaining to KP No.102 dag No.244 pursuant whereto the possession of the entire land had been delivered to the defendant No.1. When the plaintiffs attempted to dispossess the defendant No.1 from these lands he had to institute proceedings under Section 145/146 of the Cr.P.C. and the land under dag Nos.959 and 186 were put under attachment. He, therefore, prayed for dismissal of the suit. After exchange of pleadings the learned trial Court had framed as many as six issues which are as follows : -