ON THE DEATH OF MRS. SARAJUBALA CHATTERJEE HER HEIRS SHRI RAM RANJAN CHATTERJEE AND ORS. Vs. K.M. DINGDOH

JUDGEMENT

(1.) This Defendant's first appeal is from the judgment and decree of the learned Assistant District Judge No. 2, Gauhati decreeing the suit. The Plaintiff instituted Title Suit No. 20/76 for declaration of title and for confirmation of possession of the suit, land measuring 5 Bighas which he claimed to have purchased on 22.12.56 for Rs. 40,000/ - and obtained possession and mutation thereof. The Defendant, however, got her name also recorded in the patta, as per order of the AASO dated 16.6.66 which clouded the Plaintiff's title wherefor he filed the suit which was resisted by the Defendant staing, inter alia, that she had been is possession of 2 Kathas 10 Lechas of the suit land deriving title thereto.

(2.) The learned trial Court framed 7 (seven) issues, The Plaintiff examined himself as P.W. 1 while the Defendant examined herself as D.W. 1. The learned trial Court found, inter alia, that the suit was maintainable; that it there was cause of action; the suit was not bad for defect of parties; it was not barred by Sec. 154 of the Assam Land and Revenue Regulation; and that the Plaintiff alone has got right, title and interest and also possession over the estire 5 Bighas of the suit land in Dag No. 571 of Patta No. 294 at village Ulubariagaon of Ulubari mouza. While discussing issue No. 7, namely, to what relief, if any, the parties were entitled, the court observed that the Defendant had produced one certified copy of an order passed in Money Suit No. 57/67 in the court of the Assistant District Judge No. 1 of Gauhati showing sale of the entire 5 Bighas of land of the suit Patta No. 294, Dag No. 571 excluding an area of 2 Kathas 4 Lechas stated to be under possession of the Defendant in an auction sale on 23.7.73 in execution of a decree in the above noted suit. It was not known whether the Plaintiff had got the sale set aside; but as the Plaintiff had title over the land, he was held to be entitled to declaration of his title over the land of the suit patta and he would be entitled to get the name of the Defendant removed from the patta in ease be got the auction sale net aside. The suit was accordingly decreed subject to the above condition.

(3.) Mr. S.K. Sen, the learned Counsel for the Defendant -Appellant submits that the trial court erred In passing a conditional decree without knowing the real facts about the court sale and the Plaintiff having been divested of his title over the entire suit land by the court sale he was not entitled to a decree and the suit is liable to be dismissed.