NANDA RAM DAS Vs. BHADRESWAR HAZARIKA AND ORS.

JUDGEMENT

(1.) This first appeal at the instance of defendant No. 1 of Title Suit No. 34/1999 is directed against judgment and decree dated 06.09.2003 passed by learned Additional District Judge (Adhoc), Jorhat in the aforesaid title suit decreeing the suit of the plaintiff for declaration of right, title and interest and for recovery of possession over schedule B land measuring 4 kathas.

(2.) The respondent No. 1 herein, as plaintiff, instituted T.S. No. 34/1999 in the Court of learned Civil Judge (Sr. Divn.) at Jorhat on 23.06.1999 stating that land measuring 1 bigha 2 kathas 5 lechas covered by dag No. 205 of PP No. 85 of Baliparia Baga Gaon in Titabor mouza of Jorhat district and more particularly described in schedule A to the plaint is his land. He has valid right, title and interest with respect thereto but the defendant No. 1 who was a neighbour at the northern boundary of this land, dispossessed the plaintiff from 4 kathas described in schedule B. He raised protest on such dispossession. After having come to know about this dispossession, defendant No. 1 immediately lodged a complaint with the jurisdictional Executive Magistrate on 04.04.1992 leading to registration of a proceeding under Section 145 Cr.P.C. vide No. 125/1992. It is thereafter, the defendant No. 1 filed a civil suit being Title Suit No. 49/1992 in the Court of learned Munsiff No. 2 at Jorhat on 04.11.1992 praying for declaration of his right, title and interest allegedly on the ground of exchange from its purported original owner, one Dhuruka Kaibartya, the predecessor of the principal defendants No. 2 and 3 herein. The learned trial court decreed Title Suit No. 49/1992 on 20.04.1996 declaring right, title and interest of defendant No. 1 on the suit land and also decreed prayer of injunction against the present plaintiff with confirmation of possession. Aggrieved, the present plaintiff, as appellant, preferred title appeal being T.A. No. 8/1996 in the court of learned Civil Judge (Sr. Divn.) at Jorhat whereupon the appeal was partly allowed setting aside the part of the decree as to declaration of right, title and interest over the present defendant No. 1 but confirming his possession over the same land. According to the present plaintiff, the said decree is not binding on him and he is entitled to a decree of declaration as to right, title and interest along with a decree for recovery of khas possession.

(3.) On being summoned, the defendant No. 1 appeared and submitted written statement denying the case of the plaintiff and also making mention that that he had instituted T.S. No. 49/1992 with respect to the same plot of land and between the same set of parties and his right, title and interest was declared in that case. On being appealed against, the decree was modified maintaining the decree of confirmation of possession but setting aside decree for declaration of right, title and interest. The defendant No. 1, therefore, pleaded that suit was not only barred by the principle of res-judicata but it was also barred by limitation. On the basis of such pleadings, the learned trial court framed as many as 10 (ten) issues and the same are quoted below: