RANJIT KALANDI Vs. LABANYA SAIKIA & OTHERS

JUDGEMENT

(1.) This Second Appeal at the instance of the defendant has been preferred challenging the first appellate judgment and decree of reversal. The learned trial Court dismissed the suit holding that the plaintiff could not establish his right, title and interest over the suit land and on appeal the trial Court judgment has been reversed.

(2.) The original plaintiff, late Bhadreswar Saikia as plaintiff, instituted Title Suit No. 72/1998 in the Court of learned Civil Judge (Junior Division) No.1 at Jorhat on 25.11.98 stating that suit land measuring 1 Bigha 1 Katha 10 Lechas covered by old Patta No.2 and new Patta No.3 and old Dag No.62 and new Dag No.143 and land measuring 3 Bigha 4 Katha 5 Lechas covered by old Patta No.2 and new Patta No.4 and old Dag No.58 and new Dag No.141 originally belonged to Bibijan Tea Estate and the same was gifted in favour of his father Late Bhadreswar Saikia by the then manager of the Tea Estate on execution of a registered deed of gift. After death Bhadreswar Saikia whole of his immoveable properties devolved on his four sons, namely, Chakraswar Saikia, Trailakya Nath Saikia, Nareswar Saikia and the plaintiff Bhuba-neswar Saikia and thereupon they held a family settlement among themselves on 15.3.75. Pursuant to the family settlement the suit land described in the schedule to the plaint fell in the exclusive share of the plaintiff which he was enjoying through a ploughman, named Baijnath alias Baijlal. After death of Baijlal the land was being looked after by his brother Trailakya Nath Saikia during which time the defendant trespassed into the land on 16.9.1986. The plaintiff instituted a proceeding under Section 145 Cr.P.C. in view of apprehension of breach of public peace and tranquility arising from such trespass and Misc. Case No.500/86 was registered thereby. The land was initially kept under attachment under Section 146 Cr.P.C. but subsequently by order dated 26.10.1995 the Executive Magistrate declared possession of the defendants over the suit land. Situated thus, plaintiff did not had any other alternative but to institute the suit praying for a decree declaring that he has right, title and interest with respect to the suit land and that he is entitled to recovery of khas possession by evicting the defendants. A prayer was also made for mandatory injunction as well as permanent injunction as a consequential relief.

(3.) On being summoned the defendant appeared and submitted written statement on 04.08.1999 denying the case of the plaintiff in entirety. The defendant alleged that the suit land was not the paternal property of the plaintiff. There was no gift whatsoever and that any gift even if made by manager of a tea estate would not amount to transfer of any title in favour of the donee. The defendant claimed to be in possession of the suit land since 1951 from the time of his father. He even went to the extent of saying that he was born in the dwelling house situated on the suit land and thus the very story of trespass in the year 1986 was false. He mentioned that in the proceeding before the Executive Magistrate under Section 145 Cr.P.C. the fact as to possession of the suit land by his father Bhudna Kalindi was acknowledged and this is why the Executive Magistrate declared possession of the defendant over the suit land. The defendant prayed that the suit of the plaintiff be dismissed with cost.