SARAT BALADEKA AND ORS. Vs. NARAYAN BAISHYA

JUDGEMENT

(1.) THIS Second Appeal has been preferred by the plaintiffs challenging the First Appellate Court judgment and decree whereby the suit of the plaintiff was dismissed by the First Appellate Court reversing the finding of the learned trial court. The plaintiff, Lankeshwar Deka, instituted Title Suit No. 286 of 1992 in the Court of learned Munsiff No. 3, Guwahati, stating that suit land measuring 1 Bigha was owned and possessed by him from its original owner Lohit Chandra Moral by registered sale deed No. 60 of 1974 dated 04.01.1974. It is the case of the plaintiff that he was in the service of the Government of Assam and his service was a transferable one. He claimed to have retired on 01.07.1990 and thereafter, decided to raise a residential house on the part of the aforesaid land measuring 1 Bigha. But the principal defendant No. 1 encroached the C Schedule land measuring 4 Chataks by force and converting the same into a path. Land described in Schedule B & Schedule C are parts of Schedule A which is claimed to have been purchased by the plaintiff on 04.01.1974 by registered sale deed No. 60 of 1974. The plaintiff claimed to have approached the learned Executive Magistrate by invoking Section 145/146 of the Code of Civil Procedure leading to restoring of 432 of 1991 but the same was decided against him on 01.08.1992 observing that C Schedule land is a public path in use by the people of locality for connecting Barbari Hills village to the P.W.D. road. Aggrieved by the order passed by the Executive Magistrate, plaintiff filed the suit praying for declaration of his right, title and interest over Schedule B land and for confirmation of possession thereon. On the order passed by the learned trial court proforma defendants No. 1 to 8 were impleaded in the case who also participated in the proceeding. In the written statement, it was the specific stand taken by the defendants that Schedule C land is apart of public path which connects the P.W.D. road with Barbari Hills Gaon over the land of so many parties including the defendants. While land owners of other lands do not have any objection for use of the land by the public for over 40 years, it is the plaintiff alone who has been raising objection after 40 years. The defendants prayed that the suit be dismissed with cost. Upon perusal of the rival contention of the parties the learned trial court framed as many as 7 issues which are quoted below:

(2.) OUT of the aforesaid issues, Issue No. 5 & 6 are the most relevant one inasmuch as the same is concerned with adjudication as to nature and character of Schedule C land. The plaintiff adduced 6 documents and examined 3 witnesses. On the other hand, the defendants examined 4 witnesses and adduced 14 documents to prove their respective case.

(3.) WHILE admitting the Second Appeal on 13.03.2002 this Court framed only one substantial question of law and the same is quoted as follows: