DAMBARUDHER DAS Vs. PABITRA MOHAN DAS AND ORS.

JUDGEMENT

(1.) The Respondents as Plaintiffs, instituted Title Suit No. 4/2003 in the court of the learned Civil Judge (Jr. Division), No. 1, Barpeta (now Munsiff), against, the present Appellant and the legal heirs of late Krishna Kanta Das as Defendants, as well as 9 (nine) others as proforma Defendants praying for declaration of right, title and interest over the land measuring 2 Bighas, 0 Kathas, 15 Lecahs described in Schedule C; for declaration that the Defendants have no right, title and interest exceeding 3 Kathas of land in Dag No. 998 described in Schedule B; for declaration, that the registered deed of sale No. 2005/2000 dated 28.8.2000 is fraudulent; for partition of the suit land described in Schedule C and to place under the exclusive khas possession of the Plaintiffs by creating separate dag and also for declaration that the Defendants may enjoy the easementnry right over a passage of 6 feet by 20 feel described in Schedule D without any right, title and interest over the said plot of land and not to make any construction over there and also for permanent injunction contending inter alia that late Madhab Chandra Das, the predecessor-in-interest of the plaintiffs had his permanent dwelling house over a plot of land measuring 5 bighas, 0 Katha, 16 Lechas at Galiahati, Barpeta, which comprises periodic patta land measuring 2 Bighas, 1 katha 9 lechas covered by Dag No. 1142 under K.P. Patta No. 416 and a plot of 2 bighas 4 kathas 7 Lechas out of 3 Bighas, 0 Katha, 11 lechas covered by old Dag No. 700 under N.K. Patta No. 2 as per the record of rights prepared in the settlement of 1923-28 and in another 998 (new) over the land measuring 1 katha 4 lechas the proforma Defendant Nos. 1 and 2 are residing being the sons and daughter of late Dabaraj Das. That the pro forma Defendants are closely related to the Plaintiffs and they happened to be co-sharers of the Plaintiffs to share the land covered by Dag No. 700 (old) and 998 (new), similarly, the Defendants are also co-sharers of Dag No. 700 (old), 998 (new) under N.K. Patta No. 2 having title and possession over 3 Kathas of land, but unlike the pro forma Defendants, the Defendants are not related to the Plaintiffs as the father of Defendants did not have any 'bhag"9 in the Barpeta Kirtan Ghar originally. It has further been contended that it was because the father of Defendant Nos. 1 and 2, namely late Buduram was engaged as a servant by late Madhab Chandra Das, the predecessor-in-interest of the Plaintiffs settled a part of his land measuring 3 Kathas permanently without executing any written deed within Dag No. 700 (old)/998 (new) and got the name of Buduram entered into the revenue record prior to the settlement operation of 1958-65. The Plaintiffs further asserted that during the settlement operation of 1958-65 the land covered by Dag No. 700 under N.K. Patta No. 2 measuring 3 Bighas 0 Katha 11 Lechas was reduced to 2 Bighas 4 Kathas 19 Lechas and was placed under the new Dag No. 998. So, after leaving 1 Katha, 4 Lechas of land belonging to the father of pro forma Defendant Nos. 1 and 2 and 3 Kathas of land belonging to late Buduram, remaining land measuring 2 Bighas, 0 Katha, 15 Lechas of land belonged to late Madhab Chandra Das,.the predecessor-in-interest of the Plaintiffs, which has been fully described in Schedule C of the plaint and called the suit land. The further case of the Plaintiffs is that they are possessing the suit land with their homestead thereon, but on 5.5.2000, the Defendants surrounded the major portion of the land shown in Schedule D of the plaint, through which they used to pass through, with a view to expand their land as well as to consolidate their right, title and possession in excess of their land measuring 3 Kathas and again, in the first week of June 2000, the Defendants pushed away their eastern boundary fencing by 10 feet further eastward and in that way, they have made encroachment of 106 Feet x 10 Feet of land forcibly. According to the Plaintiff the Defendant Nos. 1(b), (c), (d) and (e) executed a registered deed of gift No. 2005 dated 28.8.2000 in favour of Defendant No. 2 gifting 4 Kathas 19 ⅔, Lechas of land from Dag No. 998 when they had right, title and interest over 3 Kathas of land only.

(2.) The main Defendants, on receipt of the summons, entered appearance and contested the suit, by filing written statement and raising the plea for want of cause of action, non maintainability of the suit, limitation, under valuation of the suit as well as non-joinder of necessary parties without, however contending who are the necessary parties who ought to have been added as parties to the suit. Denying the claim of the Plaintiffs, the main Defendants in the written statement has contended that in the patta issued in the year 1923-28 the land was covered by Dag No. 700 measuring an area of 3 Bighas, 0 Katha, 11 Lechas and at that time the pattadar was Madhab Ram Doctor, Buduram Das and Purusottam Das and by an order of SDC dated 24.6.1935 the name of Debraj Das was mutated as late Madhab Chandra Das donated his share to Debraj. Similarly by an order of SDC dated 1.5.1942 the name of Madhab Chandra Das was mutated in art area of 2 Bighas, 1 Katha 7, Lechas in place of Purusattam Das, who had interest and possession over 1 Bigha, 2 Katha, 1 Lecha of kind. However, late Buduram Das, the predecessor-in-interest of Defendants was possessing his share, of 1 Bigha 2 Kathas, 1 Lecha from the eastern part by raising permanent boundary post and bamboo fencing. The possession of the Defendants is still continuing which is from the days of Late Buduram, which the Defendants are possessing by constructing their homestead thereon. The Defendants further averred that after the death of Buduram Das, his son Krishna Kanta Das got mutation in the Dag in place of Budu Ram Das. Late Budu Ram had four sons - (i) Krishna Kanta Das, (ii) Bipin Das, (iii) Parbanananda Das and (iv) Dambarudhar Das. Except Dambarudhar Das all other sens of Budu Ram Das left the paternal basti and constructed their own homestead in different places. The contesting Defendants further averred that as Dambarudhar Das had no mutation over the suit land the pattadar Krishna Kanta Das'j brother of Dambarudhar Das, executed one Deed No. 2005/2000 dated 28.8.2000 in order to facilitate Defendant No. 2 in getting mutation thereon. According to the answering Defendant, the Plaintiffs have brought the suit by false statement of facts and hence, they prays for dismissal of the suit with cost.

(3.) The learned trial court on the basis of the pleadings of the parties initially framed six issues and, thereafter, an additional issue being issue No. 7, relating to the non-joinder of necessary parties, was also framed, which are as follows: