KHAGEN BARUAH Vs. TULU KOCH AND ORS.

JUDGEMENT

(1.) THIS appeal by the appellant/defendant No. 1 is directed against the judgment and decree dated 11.04.2003, passed by the learned Additional District Judge (FTC), Sonitpur at Biswanath Chariali, in Title Appeal No. 1/1999 affirming the judgment and decree dated 21.09.1998, passed by the learned Civil Judge (Junior Division), Biswanath Chariali, in Title Suit No. 20/1991.

(2.) THE case set out in the plaint is that 5 Bigha 2 Katha 6 Lecha of land, covered under Dag No. 578 (old)/84 (new) of Periodic Patta No. 236 (old)/193 (new), situated at village Moralgaon, Mouza -Biswanath, originally belonged to one Khemia, who had two sons, namely, Maghiram Koch and Thaneswar Koch. After the death of Khemia, both the brothers made amicable partition of the aforesaid land in equal shares about 25 years ago and accordingly, land measuring 2 Bigha 3 Katha 13 Lecha fell in the share of Thaneswar Koch alias Bora, and he was in absolute possession of the same. The defendants, who had no manner of right, title and interest or possession, had forcibly taken possession of the land described in the Schedule on 11.10.1982 taking advantage of the bedridden condition of Thaneswar Koch and, since then, they were in possession of the land. Thaneswar Koch died on 02.03.1991 leaving behind the plaintiffs as his heirs and successors. The plaintiffs requested the defendants to handover possession whereupon the defendant No. 1 informed them that he had purchased the suit land from Thaneswar Koch alias Bora by a registered Deed long time back. Accordingly, the plaintiffs made enquiries in the Office of the concerned Sub -Registrar and obtained certified copy of two registered Sale Deeds on 08.04.1991, being No. 2423 for the year 1979, and another being No. 2269 for the year 1981. It was pleaded that Thaneswar Koch alias Bora never executed any registered Sale Deed and both the Sale Deeds are forged documents. By Sale Deed No. 2423, 1 Bigha of land, covered by Dag No. 517 of Periodic Patta No. 13, and by Sale Deed No. 2269, 1 Bigha of land, covered By Dag No. 570 of Periodic Patta No. 21, both of village Moralgaon, was sold. The aforesaid Patta land never belonged to Thaneswar and, therefore, the defendant No. 1 cannot claim any right, title and interest on the strength of the said Sale Deeds. It was pleaded that Thaneswar was a trespasser and, accordingly, suit was filed praying declaration of the plaintiffs' right, title and interest over the suit land and for recovery of khas possession, etc.

(3.) THE defendant No. 2 filed written statement stating that the suit land was in possession of the defendant No. 1 by virtue of purchase since the time his father was alive. It was stated that he was engaged as an Adhiar by the defendant No. 1 and, prior to him, one Khargeswar was engaged as Adhiar by the defendant No. 1. It was also pleaded that the plaintiffs were not the legal heirs of Thaneswar Koch.