ON THE DEATH OF DEFENDANT OF BHADAN MIA @ JALAL UDDIN HIS LEGAL HEIRS SUNAFUL NESSA LASKAR AND OTHERS Vs. SUNIL CHAKRABORTY

JUDGEMENT

(1.) Heard Mr. N Dhar, the learned counsel appearing on behalf of the appellant. On perusal of the order dated 23.11.2016 of the Lawazima Court it is found that service on the respondent No. 1 considered to be deemed served. However, none has entered appearance at the time of taking up this matter for hearing and its final disposal. It is pertinent to mention here that Mr. Sunil Chakraborty is the sole respondent in this appeal.

(2.) The present appellants are the defendants in Title Suit No.09/1995 in the court of Civil Judge, (Senior Division) at Hailakandi. The present respondent as the plaintiff filed the suit against the present defendants/appellants. The brief facts of the plaintiff/respondent is that he was the resident of undivided Bengal and shifted to Cachar district in Assam. At the time of partition, he was a freedom fighter and was subjected to lot of sufferings by the British Government. After coming to the district of Cachar, he obtained allotment and possession over 30B's of suit land from the Government at the Mohanpur Requisition Area. Since 1955 onwards he reclaimed the land and made it habitable and cultivable and started to cultivate the land after constructing temporary house on the part of the land. Owing to serious eye disease, he was unable to get the land cultivated under his own supervision following which he engaged agricultural labourers. In 13.74BS, the defendants/appellants were engaged for cultivation for one year but the defendants/appellants with an ulterior motive did not vacate the land after one year and had continued to possess the land illegally against various demands being made by the plaintiff/respondent for vacating the possession of the land. The said defendants/appellants also constructed their own house upon a hillock within the suit land. The plaintiff/respondent approached the then SDO i.e. Collector, Hailakandi for eviction of the defendants. The prayer was rejected against which the plaintiff preferred an appeal before the Additional Deputy Commissioner, Cachar. The Additional Deputy Commissioner directed the SDO, Hailakandi to evict the defendants. The defendants/appellants moved the Assam Board of Revenue and the said Hon'ble Board in its judgment observed that the land would become khas only after the settlement in favour of the plaintiff/respondent is cancelled and till then the land belonged to the plaintiff/respondent, who can take action against the defendants/appellants in appropriate Court of law. On the basis of such finding, the plaintiff/respondent served notice upon the defendants/respondents requiring vacating the suit land. The defendant/respondent No.2(original) received the notice while the defendant No.1(original) refused to accept the notice. As the defendants/respondents did not vacate the suit land, the plaintiff filed the present suit for the following reliefs:

(3.) The defendants/appellants filed a joint written statement wherein they stated that they were in possession of the suit land since long along with their brothers. They further claimed that the allotment of the plot of land in the name of the plaintiff/respondent was cancelled by the SDO in Requisition Case No.196/1965 and thereafter the land was allotted to the defendants/appellants on 30.01.1971. The defendants/appellants further took the plea that without getting the order of allotment dated 30.01.1971 in favour of defendants/appellants being set aside the plaintiff/respondent did acquire any right to file the instant suit. So they prayed for disposal of the suit. On the basis of the pleadings following issues were framed: