HARAKANTA DEKA AND ORS. Vs. MAYA RAM DEKA

JUDGEMENT

(1.) THIS Second Appeal is directed against judgment and decree dated 4.7.2003 passed by the Civil Judge (Senior Division), Nalbari, in Title Appeal No. 8/2001 affirming the judgment and decree dated 30.6.2001 and 12.7.2001 respectively passed by the Civil Judge (Junior Division), Nalbari in Title Suit No. 33/97. The facts of the case, as set out in the plaint, is that land measuring 1 Bigha, 3 Kathas, 4 Lechas of K.P. Patta No. 75 of Dag No. 251, originally forms part of an area of land measuring 4 Bighas, 0 Katha, 14 Lechas in respect of which the plaintiff and his two brothers, namely Ganesh and Bongshi were the Khatiandars on the strength of Khatian No. 27. The aforesaid plot of land measuring 4 Bighas 0 Katha, 14 Lechas was amicably partitioned between the plaintiff and his two brothers. Pursuant thereto, an area of land measuring 1 Bigha, 3 Katha, 4 Lechas fall into the share of the plaintiff. The said area of land measuring 1 Bigha, 3 Katha, 4 Lechas are in two plots, i.e., one measuring 4 Katha 4 Lechas and other measuring 4 Katha, both the plots being covered by Dag No. 251 of Patta No. 75 of Village -Balagaon under Mouza -Uperbarbhag in the District of Nalbari.

(2.) PLAINTIFF 's case is that after the amicable partition of the land carried out about 20 years back, the aforesaid plot of land measuring 1 Bigha 3 Kathas, 4 Lechas, which is the suit land, was under the exclusive possession and occupation of the plaintiff and the plaintiff's name had been duly recorded as an occupancy tenant in the records maintained by the Government. The Defendant No. 1 and 2, who are sons of the brother, of the plaintiff, viz. Bongshi, tried to dispossess him from the suit land. On an apprehension of breach of peace, the plaintiff had preferred a proceeding under Sections 145/146 Cr.P.C. bearing number Misc. Case 82/88 whereby and whereunder the disputed land was attached. In the petition filed in connection with Misc. Case No. 82/88, the plaintiff had inadvertently shown the suit land to be covered by one boundary although the same comprise of two plots of land. Taking into account such inadvertent error in describing the suit land, the Executive Magistrate had declared the possession in favour of the Defendants No. 1 and 2 vide order dated 26.5.1997. Although Criminal Motion C.M. No. 12/97 was preferred against the said order in the Court of District and Sessions Judge, Nalbari by the plaintiff, yet the same was also dismissed.

(3.) THE defendants/appellants No. 1 and 2 contested the suit filed by the plaintiff by filing a joint written statement whereby they have denied the claims made by the plaintiff in the plaint Besides taking formal objection in the written statement, the appellants -defendants No. 1 and 2 had also stated that the plaintiff's name had been included in the Khatian No. 27 in a fraudulent and collusive manner with the help of the revenue officials. The contesting defendants also denied that there was an amicable partition in respect of the land measuring 4 Bighas 14 Lechas jointly held by the three brothers as occupancy tenants. The defendants No. 1 and 2 further claimed to have purchased the suit land from its pattadar Sanjib Barua by means of a registered Deed of Sale. They have denied that the plaintiff was ever in possession of the land.