SONSENI BIBI Vs. LEGAL HEIRS OF BABUL BORO

JUDGEMENT

(1.) Heard Mr. RJ Bordoloi, learned counsel for the appellants. None appears on behalf of the respondents though the names of the learned counsels have been duly shown in the cause list.

(2.) The present appellants are the defendants in Title Suit No. 225/1992 in the court of learned Civil Judge (Jr. Divn.) No. 1, Guwahati. The original plaintiff/ respondent, namely, Babul Boro preferred Title Suit No. 225/1992 against the present defendants/ appellants for declaration of his possessory/ tenancy right over the suit land along with declaration that the decree obtained in Title Suit No. 253/1984 on 12.01.1989 passed by the learned Sadar Munsiff No. 1 at Guwahati in favour of the present defendants/ appellants is void, illegal and ineffective in law and for a further declaration that the Title Execution Case No. 15/1989 was illegally instituted without a lawful decree and the acts involved therein are void, illegal and ineffective in the eye of law and for confirmation of possession of his right over the suit land. On the death of the sole plaintiff, his legal heirs were substituted in the present second appeal. It is the case of the plaintiff/ respondent that he and his elder brother, namely, Santhar Boro (since deceased) were the khatian holders of Schedule A and B land respectively. They were the occupancy tenant under the original pattadar. Santhar Boro died leaving behind his wife and a daughter who also died leaving behind the plaintiff as the only legal heir. The plaintiff inherited the property of Santhar Boro as shown in Schedule B of the plaint. It was pleaded that he was an occupancy tenant and entitled to get all protections under the Assam (Temporarily Settled Areas) Tenancy Act, 1971. The present defendants/ appellants filed Title Suit No. 58/1977 against the plaintiff/ respondent and his elder brother in the court of learned Assistant District Judge No. 1, Guwahati for declaration of their title and recovery of possession over the suit land described in Schedule A and B along with other land. The suit was partly decreed declaring right title of the plaintiff No. 1 over the suit land vide judgment dated 20.02.1984. In the said judgment, the learned Assistant District Judge No. 1, Guwahati while discussing issues No. 5 and 6 found that the khatian of the plaintiffs/ respondents were valid. It was also held in the issues No. 7 and 8 that the defendants/ appellants were not entitled to get a decree for recovery of possession. The defendants/ appellants again filed Title Suit No. 253/1984 against the present plaintiff/ respondent with respect to the same land with a prayer for declaration of title and recovery of possession thereon. An ex parte decree was obtained by the defendants/ appellants without serving summons as per the provisions of the Code of Civil Procedure on the plaintiff/ respondent. The defendants/ appellants suppressed the fact and the result of their earlier Title Suit No. 58/1977 and fraudulently managed to obtain a decree and also a report of Civil Nazir in Title Execution Case No. 15/1989 showing to have obtained possession of decreetal land on 29.06.1990 by the defendants/ appellants. The report of Nazir, as pleaded by the plaintiff/ respondent, was false and manufactured and no possession was delivered to the defendants/ appellants. On the strength of the said ex parte decree and the report of the Nazir in Title Execution Case No. 15/1989, the defendants/ appellants started harassing the plaintiff/ respondent by filing various criminal cases. While the plaintiff/ respondent was contesting the said criminal cases, he could come to know for the first time on 20.03.1992 about the institution of the Title Suit No. 253/1984 and Title Execution Case No. 15/1989 from the certified copies of documents filed by the defendants/ appellants in the court of Executive Magistrate. Accordingly, the plaintiff/ respondent filed the suit for declaration and the reliefs mentioned hereinabove.

(3.) The defendants/ appellants contested the claim of the plaintiff/ respondent, filed their joint written statement and took the defence that on 18.03.1966, the defendant/ appellant No. 1 purchased the suit land from its original pattadars and thereafter obtained possession thereon the suit land. The name of the defendant/ appellant No. 1 was mutated in the Revenue Records in the year 1968. The defendants/ appellants while possessing the suit land, the plaintiff/ respondent along with his brother tried to trespass into the suit land and as such, Title Suit No. 58/1977 was filed. The said suit was decreed on contest declaring title of the defendants/ appellants over the suit land. The plaintiff/ respondent afterwards tried to forcibly occupied a portion of the suit land and as such Title Suit No. 253/1984 was instituted against the plaintiff/ respondent and his brother, Santhar Boro. Summons were duly served on the plaintiff/ respondent. However, owing to nonappearance, the suit was decreed ex parte and the same was executed properly and the defendants/ appellants were maintaining possession over the suit land. It was also taken as the defence that the alleged khatian of the plaintiff/ respondent was cancelled by the settlement officer on 16.09.1964 and the plaintiff/ respondent nor did his brother ever occupy the suit land as tenant under the vendors of the