SRI SARUDHAN ALIAS KH Vs. SRI DEBESWAR BORA

JUDGEMENT

(1.) AND ORDER (CAV) - Heard Mr. P Mahanta, learned counsel for the appellants. However, none has entered appearance on behalf of the sole respondent.

(2.) The present respondent, as plaintiff, preferred Title Suit No. 11/2002 in the court of learned Civil Judge (Jr. Divn.), Biswanath Chariali, against the present appellants/defendants. Within a short radius, the case of the present respondent is that he purchased land measuring 1 Bigha out of 7B 1K 13L covered by Dag No. 318 (old)/693 (new) of Periodic Patta No. 145 (old)/24 (new) of village Napamua Guadhara under Mouza Kalangpur in the district of Sonitpur. The said land was purchased by way of registered sale deed No. 1337 dated 30.04.1974 from one Laibhya Bora (deceased) and since then he had been possessing the land by cultivating the same till the year 1997 as its exclusive owner. Laibhya Bora, inherited the said land measuring 7B 1K 13L from her husband along with the present appellant/defendant No. 2 and proforma defendants No. 5 and 6. Laibhya Bora died leaving behind her three daughters i.e. appellant/defendant No. 2 and the proforma defendants No. 5 and 6. The defendant/appellant No. 2 married one Guna Bora and out of the said marriage, one son, namely, Haren Bora was born to them. Later on, the said defendant/appellant No. 2 married the present defendant/appellant No. 1. The present defendants/appellants No. 1, 3 and 4 interfered with the peaceful possession of the plaintiff/respondent over the said land measuring 1 Bigha which was resisted by the plaintiff/respondent. However, on 05.07.1997 the said defendants/appellants entered into his land illegally and planted Sali crops. An FIR was lodged on 06.07.1997 where after, the plaintiff/respondent planted Sali crops and harvested the same. On the basis of the said FIR, a proceeding under section 145 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.) was drawn up by the learned Executive Magistrate and in the said proceeding, possession was declared in favour of the plaintiff/respondent on 20.05.1999. Being aggrieved, the defendants/appellants preferred a revision petition and vide order dated 05.09.2001, the learned Sessions Judge, Sonitpur at Tezpur allowed the revision petition by setting aside the order passed by the learned Executive Magistrate in the proceeding initiated under Section 145 Cr.P.C., 1973 Taking advantage of the said RSA 39/2007 judgment passed in the revision, the defendants/appellants took possession over the suit land. Thereafter, the plaintiff/respondent filed the suit for declaration of his right, title and interest, recovery of possession and permanent injunction.

(3.) The defendants/appellants contested the suit by filing their written statement. In the defence, the defendants/appellants denied that the plaintiff/respondent ever possessed the suit land and cultivated thereon. It was also denied that the plaintiff/respondent became the legal owner of the suit land during the life time of Laibhya Bora, the vendor. It was also denied that the plaintiff/respondent was holding the possession of the suit land prior to the drawal of the proceeding under Section 145 Cr.P.C., 1973 It is admitted that after the order passed by the re-visional court, they took possession over the suit land. It is the case of the defendants/appellants that one Akanman Keot alias Bogiram Bora was the exclusive owner of various land including the land covered by Dag No. 318/693 measuring 7B 1K 13L. After the death of Akanman Bora, his wife Laibhya Bora and daughters, namely, Smti. Anila Bora (proforma defendant No. 5), Smti. Rohini Bora (proforma defendant No. 6) and Smti. Bhogeswari Bora (defendant No. 2) became the joint owners of the properties left by Akanman Bora and each has ¼th share over the total land. Their names were mutated in Mutation Case Nos. 334/71-72, 335/71-72, 336/71-72 and 172/72-73. The said proforma defendants No. 5 and 6 sold their respective shares of land vide registered sale deed in favour of defendant/appellant No. 2 and her sons. Subsequently, their names were also mutated in the Records of Rights. Out of the total land measuring 7B 1K 13L, the defendants/appellants became the rightful owners of land measuring 5B 2K 9L under Dag No. 693. One Niranjan Bora (the son born out of the marriage of defendant/appellant No. 2 with Guna Bora referred herein above), the grandson of Smti. Laibhya Bora was possessing her share of land who ultimately vide a registered deed of gift No. 2274/1980 dated 21.08.1980, gifted her land in his favour. Niranjan Bora mutated his name in the Records of Rights. A plea has also been taken as a defence, that though plaintiff/respondent purchased the land in the year 1974, he did not have possession over the suit land at any point of time. It was also pleaded by the defendants/appellants that there was no formal partition between the co-owners of the land, but for their own convenience, each of them had their own portion demarcated. Share of Laibhya Bora was on the north-west boundary of the total land covered by Dag No. 693 which, at present, is under the possession of Niranjan Bora. In the gift deed, Laibhya Bora gave her boundary of her share of land on the north western side of the total land covered by Dag No. 693. Thus, by way of registered sale deed, executed in favour of the plaintiff/respondent by Laibhya Bora, he has not acquired any right, title and interest over the land so purchased as the vendor had no possession over the land so sold to the plaintiff/respondent. Further, if any right acquired by the plaintiff/respondent, same has extinguished long ago due to continuous, uninterrupted and hostile possession of the defendants/appellants. Accordingly, they prayed for dismissal of the suit.