GOLAP CHANDRA KALITA Vs. HAREN KALITA

JUDGEMENT

(1.) Dismissal of his suit by the two Courts below has been challenged by the plaintiff in the present Second Appeal.

(2.) The present appellant as plaintiff instituted Title Suit No.12/1992 in the Court of learned Munsiff at Rangia stating that the suit land measuring 2 bighas 8 lechas covered by Dag No.1459 of K.P. Patta No.145 of village Tulsibari under Panduri Mouza of Rangia Circle was originally owned along with other lands by one Debi Ram Kalita. He mortgaged the entire land in favour of one Garga Ram Kalita by creating usufructory mortgage on the condition that the land would stand redeemed after the mortgage money is realized by the mortgagee from the usufructs. But even after liquidation of the mortgage money the mortgagee did not hand over vacant possession of the land in favour of Debi Ram Kalita for which he instituted Title Suit No.86/1970 in the Court of learned Munsiff at Guwahati for redemption of the land and for recovery of possession. The suit was decided ex parte in favour of the plaintiff on 03.12.1971. In the meantime, on 26.06.1968 original owner Debi Ram Kalita executed a registered sale deed in favour of the plaintiff with respect to the suit land but possession was not delivered as mortgagee was in possession of the land. Subsequently, after redemption of mortgage on the basis of judgment and decree passed in Title Suit No.86/1970, Debi Ram Kalita got the possession and thereafter handed over the same to the plaintiff. He continued enjoying the same on assertion of his right, title and possession but he failed to get mutation in the records of rights because of the objection raised by the defendants who are the two sons of the mortgagee. This is because the mortgagee had, in the meantime, got his name mutated in the records of rights although he has no semblance of title in regard thereto. The plaintiff instituted the suit for declaration of his right, title and interest over the suit land on the basis of registered sale deed No.4070 dated 26.06.1968 and for confirmation of possession. He also made a prayer for appropriate direction for correction of the entries in the records of rights.

(3.) On being summoned the two defendants appeared and submitted their written statement. Debi Ram Kalita was inmpleaded as proforma defendant No.4 in the case. He also submitted a written statement separately. The defendants No.1 and 2 in their written statement submitted that the suit land originally belonged to Debi Ram Kalita who had mortgaged the same in favour of their father late Garga Ram Kalita. Debi Ram Kalita later on instituted the suit for redemption of usufructory mortgage and during pendency of the suit Garga Ram died. Accordingly they were substituted as defendants but they did not contest the suit since the suit land was released in favour of the plaintiff upon liquidation of the mortgage money from the usufructs. In the meantime, Garga Ram also transferred his title in favour of the original owner Garga Ram Kalita. Mutation of their names, if there be any, in the records of rights were due to mistake or otherwise and so they prayed that the suit of the plaintiff be decreed except with cost. In their written statement they enclosed a copy of decree dated 03.12.1971 passed in Title Suit No.86/1970 and a copy of Misc. Case No.2/1972 disposed of on 14.06.1971 (sic).