CHANDI BISWAS Vs. NARENDRA KUMAR RAI

JUDGEMENT

(1.) Heard Mr. G.P. Bhowmik, learned Senior Counsel for the appellants. Also heard Mr. A.L. Mondal, learned counsel for the sole respondent.

(2.) This second appeal has been preferred against the judgment and decree of reversal dated 03.06.2003 passed by the Court of District Judge, Morigaon, in Title Appeal No.15 of 2001 dismissing the Title Suit No.25 of 1999 instituted by the appellants as plaintiffs. This Second Appeal was admitted to be heard on the following substantial question of law:

(3.) The case of the appellants/plaintiffs in brief is that their father Late Noai Biswas was the original owner of the suit land measuring 10 Bighas 3 Kathas 11 Lechas which forms part of the larger plot of land measuring 12 Bighas 3 Kathas 11 Lechas covered by Dag No.279/ 264 of Periodic Patta No.67, situated at the Revenue Village of Lcharaibori under Pakarai Mouza in the District of Morgiaon. Noai Biswas died leaving behind his wife Raisundari and 2 sons, namely, the appellant Nos. 1 and 2. Raisundari also died a few years latter leaving behind the appellants as her heirs. During her lifetime the mother of the plaintiffs Raisundari had allowed the defendant No.1 to cultivate the suit land on the basis of "Adhi"' and accordingly, the defendant has been paying "Adhi" regularly. Since, both the plaintiffs were minors at the relevant point of time, hence, taking advantage of their minority and keeping their mother in the dark, the defendant had fraudulently mutated his name in the chitha on 23.03.1979 by taking the help of some of the revenue staff of the Mayong Circle. The chitha mutation was obtained on the basis of right of purchase of the suit land allegedly made by the defendant from the plaintiffs by means of a registered deed of sale. The case of the plaintiffs is that they had never executed any registered deed of sale in favour of the defendants and further that at the relevant point of time, the plaintiffs being minors, could not have executed a registered sale deed on their own. The plaintiffs No.1 and 2 had attained majority in the year 1987 and 1990 respectively and thereafter, wanted back the possession of the suit land for the purpose of cultivating the same by themselves but they were dispossessed forcibly by the defendants in the month of March, 1994, with the help of some men, as a result of which, a proceeding under Section 145 of the Code of Criminal Procedure in the form of MR Case No.55 of 1994 was started and the suit land was attached by an order passed in connection with the said proceeding. The plaintiffs had also instituted MRK Case No.9 of 1994 in the Court of the Deputy Commissioner, Morigaon, for cancellation of the chitha mutation obtained by the defendant. According to the plaintiffs, the cause of action for filing the suit arose when the defendants had obtained the chitha mutation in respect of the suit land and therefore, the plaintiffs had filed Title Suit No.25 of 1999 in the Court of the Civil Judge (Senior Division), Morigaon, inter alia, praying for a decree declaring their right, title and interest over the suit land; for a decree of permanent injunction restraining the defendant from entering into the Schedule-A of the suit land; for issuance of a precept for cancellation of the chitha mutation and for other consequential reliefs.