KASHI NATH GOGOI Vs. THAMBAHADUR DORJEE

JUDGEMENT

(1.) THIS appeal by the plaintiffs in Title Suit No. 146/91 is against the judgment dated 10. 09. 99 and decree dated 29. 09. 99 passed by the learned Civil Judge (Senior Division), Kamrup, Guwahati in Title Appeal No. 37/97 dismissing the appeal and upholding the judgment dated 31. 05. 97 and decree dated 12. 07. 97 drawn by the learned Civil Judge (Junior Division) No. 1, Kamrup, Guwahati in Title Suit No. 146/91 dismissing the suit.

(2.) THE appellant Nos. 1 and 2 and also the predecessor in interest of the appellant No. 3 (a) to 3 (d) filed Title Suit No. 146/91 in the Court of the learned Civil Judge (Junior Division) No. 1 (Now Munsiff), Guwahati praying for declaration of right, title, interest and recovery of khas possession in respect of land measuring 4 Kathas 17 Lechas covered by Dag No. 101 (new)/25 (old) of F. S. Grant No. 1 (new)/27 (old) of village Baruabari Mouza Panbari in the district of Kamrup, Assam, more fully described in Schedule-B to the plaint, contending inter alia, that the plaintiff Nos. 1 and 2 purchased a plot of land measuring 1 Bigha 4 Kathas 3 Lechas of land in Dag No. 2 (old)/ 99 (new), 25 (old)/ 101 (new) of the said F. S. Grant by a registered sale deed No. 718 of 1979 on 24. 01. 1979 for a valuable consideration, the possession of which was delivered by the vendor to them. It has further been contended that the plaintiffs thereafter got their names mutated in respect of the said land and constructed ordinary thatched house. The Respondent/defendant No. 1, who is an employee of the Defence Air Force Department posted at Digaru near Sonapur, without having any right, title and interest over the land, along with some other associates with a move to grab the 'a' Schedule land measuring 1 Bigha 4 Kathas 3 Lechas created disturbance to the peaceful possession of the plaintiff and raised a bamboo thatched house for which a proceeding under Section 107 Cr. P. C. was initiated and during pendency of which on 04. 09. 79 the Respondent /defendant No. 1 trespassed into the 'b' Schedule land, which is a part of the 'a' Schedule land and dispossessed the plaintiffs from the land for which the Plaintiff No. 2 brought a proceeding under Section 145 Cr. P. C. before the Executive Magistrate as first party, in which the land ('b' Schedule land) with two small thatched houses were attached by the order of the learned Magistrate, which proceeding, however, was disposed of on 19. 11. 1990 by declaring possession of the respondent/ Defendant No. 1. The plaintiffs thereafter brought a suit for declaration of right, title, interest and for recovery of khas possession in respect of the 'b' Schedule land. The respondent/defendant No. 1 contested the suit by filing written statement, amongst others, raising the plea of maintainability of the suit for non-joinder and mis-joinder of parties and also contending that he has been possessing the land in question since 1970 continuously against its original owner by constructing dwelling house, planting valuable trees and during his long possession nobody came to the land to claim right, title and interest and he is in peaceful possession of the same. The defendant has, therefore, taken the plea of adverse possession and also contended that the suit is barred by limitation having not brought within 12 years from such adverse possession. 2. The appellant Nos. 1 and 2 and also the predecessor in interest of the appellant No. 3 (a) to 3 (d) filed Title Suit No. 146/91 in the Court of the learned Civil Judge (Junior Division) No. 1 (Now Munsiff), Guwahati praying for declaration of right, title, interest and recovery of khas possession in respect of land measuring 4 Kathas 17 Lechas covered by Dag No. 101 (new)/25 (old) of F. S. Grant No. 1 (new)/27 (old) of village Baruabari Mouza Panbari in the district of Kamrup, Assam, more fully described in Schedule-B to the plaint, contending inter alia, that the plaintiff Nos. 1 and 2 purchased a plot of land measuring 1 Bigha 4 Kathas 3 Lechas of land in Dag No. 2 (old)/ 99 (new), 25 (old)/ 101 (new) of the said F. S. Grant by a registered sale deed No. 718 of 1979 on 24. 01. 1979 for a valuable consideration, the possession of which was delivered by the vendor to them. It has further been contended that the plaintiffs thereafter got their names mutated in respect of the said land and constructed ordinary thatched house. The Respondent/defendant No. 1, who is an employee of the Defence Air Force Department posted at Digaru near Sonapur, without having any right, title and interest over the land, along with some other associates with a move to grab the 'a' Schedule land measuring 1 Bigha 4 Kathas 3 Lechas created disturbance to the peaceful possession of the plaintiff and raised a bamboo thatched house for which a proceeding under Section 107 Cr. P. C. was initiated and during pendency of which on 04. 09. 79 the Respondent /defendant No. 1 trespassed into the 'b' Schedule land, which is a part of the 'a' Schedule land and dispossessed the plaintiffs from the land for which the Plaintiff No. 2 brought a proceeding under Section 145 Cr. P. C. before the Executive Magistrate as first party, in which the land ('b' Schedule land) with two small thatched houses were attached by the order of the learned Magistrate, which proceeding, however, was disposed of on 19. 11. 1990 by declaring possession of the respondent/ Defendant No. 1. The plaintiffs thereafter brought a suit for declaration of right, title, interest and for recovery of khas possession in respect of the 'b' Schedule land. The respondent/defendant No. 1 contested the suit by filing written statement, amongst others, raising the plea of maintainability of the suit for non-joinder and mis-joinder of parties and also contending that he has been possessing the land in question since 1970 continuously against its original owner by constructing dwelling house, planting valuable trees and during his long possession nobody came to the land to claim right, title and interest and he is in peaceful possession of the same. The defendant has, therefore, taken the plea of adverse possession and also contended that the suit is barred by limitation having not brought within 12 years from such adverse possession.

(3.) THE learned Munsiff upon appreciation of evidences on record, both oral and documentary, dismissed the suit filed by the plaintiff vide judgment dated 31. 05. 1997 by holding that the respondent/defendant No. 1 could prove adverse possession and though the plaintiffs have right, title and interest over the suit land, same having not brought within 12 years from the date when the possession of the respondent/defendant No. 1 became adverse, as required under Article 65 of the Limitation Act, the suit is barred by limitation.