DARSAN SARMAH Vs. NAREN SAIKIA

JUDGEMENT

(1.) The concurrent findings of the learned two courts below have been challenged in this present second appeal by the defendant. Learned Civil Judge (Sr. Divn.), Morigaon decreed title suit No. 58/1999 on 16.11.2002 against which the principal defendant No. 1 preferred title appeal No. 7/2002 in the court of learned District Judge at Morigaon and the learned District Judge dismissed the title appeal by his judgment and decree dated 14.04.2004. The present second appeal has been preferred against the aforesaid two judgments and decrees passed by the learned courts below.

(2.) One Sri Naren Saikia and Smt. Meena Kumari Bora Saikia being husband and wife instituted title suit No. 58/1999 in the Court of learned Civil Judge (Sr. Divn.) at Morigaon on 21.12.1999 stating that suit land measuring 1K 10L covered by Dag No. 472 of PP No. 165 of Naokata Kissam under Mauza Dandua in the district of Morigaon was owned originally by one Neheru Lalung along with other lands of the aforesaid patta. On his death, his property vested on his three sons who are proforma defendants No. 5, 6 and 7, namely, Gudhan Deka, Madan Deka and Gopal Deka. Land measuring 1K 10L covered by dag No. 472 was subsequently purchased by the principal defendant No. 1, Darsan Sarmah and his brother Rajeswar Sarmah, proforma defendant No. 1 in the year 1976 and their names were duly mutated in the Records of Rights on 12.08.1977. The principal defendant No. 1 proposed to the plaintiff No. 1 in the year 1990 to sell 15L of land at a consideration of Rs. 26,000/- to be paid on instalment and the plaintiffs having agreed to the same, paid Rs. 5,000/- to the principal defendant No. 1 on 01.01.1991 who on receipt of the amount, delivered symbolical possession to the plaintiffs with a promise to remove thatched shed there-from and also executed a katcha sale deed in favour of the plaintiff No. 2 who is none other than the wife of the plaintiff No. 1. The plaintiffs came into possession of the land on 08.02.1991 and started living there by constructing dwelling house w.e.f. February, 1991. Payment of all the instalments of the total consideration of Rs. 26,000/- was completed on 19.09.1991 and thereafter the principal defendant No. 1 executed one unregistered sale deed on 19.09.1991 after receiving another extra some of Rs. 1500/-. The principal defendant No. 1 undertook to execute a registered sale deed in favour of the plaintiffs as and when demanded but despite repeated request, they went dillydallying. Ultimately, on 23.03.1999, the plaintiff No. 1 received a legal notice dated 20.03.1999 from the principal defendant through his Advocate to which the plaintiffs did not reply. But thereafter the plaintiffs received summons in title suit No. 15/1999. Under such circumstances, the plaintiffs became aggrieved and instituted the suit for getting a decree for specific performance of contract against the principal defendant No. 1 with respect to 15L of land described in Schedule A to the plaint along with other usual relief.

(3.) On being summoned, the principal defendant No. 1 submitted one written statement whereas proforma defendants filed another written statement. The principal defendant No. 1 in paragraph 20 of his written statement stated his own facts. According to him, land measuring 1K 10L covered by dag No. 472 of the suit patta was purchased by he and his brother who was proforma defendant No. 1 and their joint owners. The plaintiffs are really tenants of the defendant No. 1 and the proforma defendant No. 1 on the suit land on paying land revenue regularly and paid rents to the tune of Rs. 5,100/- upto 30.05.1999. Thereafter, when the plaintiffs declined to pay house arrears to the defendants he was asked on several occasions to vacate the premises, however, to no avail. Under such circumstances, title suit No. 15/1999 was instituted for eviction and realisation of arrear rent. The suit is pending in the court of learned Civil Judge (Jr. Divn.) at Morigaon. The principal defendant No. 1, therefore, prayed for dismissal of the suit with cost.