ATUL CHANDRA SAIKIA Vs. GAUTAM BORUAH AND ORS.

JUDGEMENT

(1.) In this second appeal, appellant has challenged the judgments and decrees passed by the learned courts below whereby the suit was dismissed.

(2.) The appellant, as plaintiff, instituted Title Suit No. 24/2004 in the Court of learned Civil Judge (Sr. Divn.) No. 1 at Jorhat on 17.06.2004 stating that land measuring 1K out of 2K 10L covered by old Dag No. 40 (new Dag No. 372) of annual Patta No. 11 which has been converted into 372/956 of periodic Patta No. 200 of Dulia Gaon in the district of Jorhat originally belonged to one Jogneswar Dutta. He sold the land to one Narayan Chandra Bora on 01.02.1961 by executing registered sale deed No. 310. Narayan Chandra Bora on turn sold the land to Nagendra Nath Boruah on 19.04.1965 by executing registered sale deed No. 1457. Nagendra Nath Boruah thereafter by executing registered sale deed No. 2652 sold the entire land to Ramesh Kumar Malpani on 24.02.1966. This Ramesh Kumar Malpani is the proforma defendant No. 3 in this case whereas the original owner Jogneswar Dutta has been impleaded as principal defendant No. 2. Plaintiff claimed to have entered into an oral agreement for purchase of this land from Ramesh Kumar Malpani (Pro-forma defendant No. 3) and subsequently he came into possession of the land in the year 1985 and made the land fit for residential purpose. Thereafter he claims to have constructed a house on the land in the year 1991 after obtaining a katcha sale deed from the proforma defendant No. 3 in respect of that suit land. He claims to occupy the land from last 20 years without any interruption. But the defendant No. 1 made attempt to enter the suit land on several occasions and ultimately on 31.08.2003, he made the last endeavour to occupy the land by removing the boundary fencing. At that time defendant No. 1 also claimed to have purchased the land from defendant No. 2. The plaintiff, therefore, initiated a proceeding under section 145 of Code of Criminal Procedure before the District Magistrate at Jorhat. The proceeding was drawn up and the suit land was attached under section 146 (I) of Code of Criminal Procedure. Since, the question of title arose in the proceeding which a learned Executive Magistrate cannot decide, plaintiff became compelled to institute the suit praying for decree for:

(3.) Upon receipt of summons, only defendant No. 1 appeared. The defendants No. 2 and 3 did not appear and so the proceeding was held ex-parte against the defendants No. 2 and 3 and on contest against the defendant No. 1. Defendant No. 1 by filing written statement denied averments of facts made in the plaint. In paragraph 11 of the written statement, he made out a case of his own stating that he purchased a plot of land measuring 2K 10L in Dag No. 372/956 pertaining to PP No. 200 from three persons, namely, Jogneswar Dutta, Ajay Dutta and Guneswari Dutta vide registered sale deed No. 1385 dated 04.09.2002 and subsequently got his name duly mutated in the records of rights. According to the defendant No. 1, plaintiff was never in possession of the land and he has no locus-standi to claim any right over the suit land. He denied the possession of the plaintiff from 1985 over the suit land and further stated that one Pranab Dutta and one Suren Kalita @ Bulu have been possessing two rooms on the suit land as tenants and they have already assured the defendant to vacate the land as its tenants.