BIRCHI NATH Vs. MD SAMIR ALI

JUDGEMENT

(1.) The judgment and decree dated 30.1.2009 passed by the learned Civil Judge No. 1, Kamrup, Guwahati in Title Suit No. 169 of 2007 has been called in question by the plaintiff of the suit in the present appeal.

(2.) Plaintiff Smti Birchi Nath instituted Title Suit No.169 of 2007 in the court of learned Civil Judge at Guwahati stating that her deceased husband Late Kuhiram Nath was a recorded tenant with respect to land measuring 1 Bigha 1 katha 7 lechas covered by Dag No.604 and land measuring 2 Bighas 2 kathas 17 lechas covered by Dag No. 598 both belonging to K.P. Patta No.91 of village Saukuchi, Mouza Beltola. Kuhiram Nath was allowed Khatian No. 36 dated 28.5.1983 till the settlement operation and so he acquired all rights of recorded tenant under The Assam (Temporarily Settled Areas) Tenancy Act.1971 (hereinafter referred to as 'Act') . He died on 12.12.2002 leaving behind plaintiff and her three sons, namely, Umesh Nath, Dinesh Nath and Ramesh Nath as the legal heirs and all of them continued enjoying the aforesaid tenanted land. Thereafter, Umesh Nath and his two sons Dhruba Nath and Gautam Nath purchased the title with respect to 1 Bigha 1 katha of land covered by Dag No.598 of the aforesaid patta from the land owners namely, the defendants No. 6 to 18 on 22.10.2003 by six separate registered sale deeds. However, 17 lechas of land in Dag No. 598 and entire 1 Bigha 1 Katha 7 lechas of land covered by Dag No.604 of the aforesaid patta remained tenancy land under the plaintiff and her aforesaid three sons. Umesh Nath, however, by virtue of internal arrangement among all the tenants including the plaintiff filed application before the Deputy Commissioner, Kamrup(M) under Section 23 of the Act praying for ownership of the land vide Rayati Case No. 57 of 2005 and the same has been pending. In the meantime, defendant No.1, Samir Ali filed case No. 138 of 2007 under Section 145/146 of the Cr.P.C. before the S.D.M. (Kamrup) at Guwahati with respect to the suit land described in the Schedule-A to the plaint and the learned Executive Magistrate by order dated 14.5.2007 attached the land. Although plaintiff and her sons submitted written statement before the Executive Magistrate and prayed for dismissal of the proceeding but the same was not heeded to. Rather defendant No. 1 became active to evict the plaintiff and her sons from the suit land described in Schedule-A to the plaint without following the due process of law.

(3.) Plaintiff further submits that in the aforesaid proceeding under Section 145 Cr.P.C., defendant No.1, Samir Ali produced a copy of alleged sale deed No. 8924/03 dated 22.10.2003 claiming that suit land has been sold to him by the three sons of plaintiff on that date. According to the plaintiff, her sons did never execute sale deed and even if their signatures were fraudulently obtained in that event, the sale deed cannot confer any title to the defendant No. 1 inasmuch as it is hit by provisions of the Act. With this averments on facts, plaintiff has prayed for a decree declaring that she along with her three sons are not liable to be evicted from the Schedule-A land save and except by procedure laid down under the Act and that their possession is not liable to be disturbed in any way and that sale deed No.8924/03 dated 22.10.2003 is liable to be adjudged as forged, false and violative of the Act. Plaintiff also made a payer for a decree of permanent injunction restraining the defendants and other men etc from disturbing the possession of the plaintiff and her sons over the suit land.