ANANTA PHUKAN Vs. SATYENDRA CH. BEZBARUAH AND ORS.

JUDGEMENT

(1.) THIS Second appeal has been preferred against the judgment dated 25.07.2003 and decree dated 06.08.2003 passed by the learned Civil Judge (Senior Division), Jorhat in Title Appeal No. 17/2002 partly allowing the appeal and reversing the judgment and decree dated 05.03.2002 passed in Title Suit No. 47/1998 by the learned Civil Judge (Junior Division), Jorhat.

(2.) THE case of the plaintiff, as projected in the plaint, is that the plaintiffs are the owners of a plot of land measuring 4 bighas 4 kathas 4 lechas covered by dag No. 9514 of periodic patta No. 152, which is standing adjacent to the land owned by the defendant measuring 1 bigha 15 lechas covered by dag No. 9517 of periodic patta No. 104.

(3.) BOTH the plots of land are separated by a earthen drain dug by the plaintiffs way back in the year 1954. In the year 1997, the plaintiffs had cleared the jungles in the land whereafter, they found that the defendant had filled up the drain on the southern side as well as on the northern side thereby encroaching about 5 lechas of land belonging to the plaintiffs. The matter having been pointed out by the plaintiffs, the defendant had initially agreed to vacate the encroached portion of the land if the allegation was found to be correct upon proper measurement. Acting on such assurance given by the defendant, the plaintiffs had applied before the Circle Officer (Jorhat East) to conduct a survey of the land whereafter, the learned Circle Officer had carried out a measurement of the land in presence of both the parties in connection with Case No. 30/97 -98. On such measurement, the claim of the plaintiffs turned out to be correct. However, despite the same, the defendant did not vacate the encroached portion of the land of the plaintiffs and on the contrary started to collect building materials on a portion of the land (i.e. the suit land) for the purpose of making construction of permanent structure thereupon. Since, the defendant did not relent despite objections raised by the plaintiffs, hence, the plaintiffs were compelled to institute the title suit praying for declaration of the right, title and interest over the suit land as well as for recovery of khas possession by evicting the defendant therefrom.