HARAKANTA DAS AND ANOTHER Vs. DIMBESWAR DAS

JUDGEMENT

(1.) This second appeal by the plaintiffs is filed against the judgment and decree dated 31.03.2007 passed by learned Civil Judge, Senior Division, Guwahati in T.A. No. 77/2005, whereby learned Civil Judge, dismissing the appeal of the plaintiffs, upheld the judgment and decree passed by learned Civil Judge, Junior Division No. 3, Guwahati in T.S. No. 237/2002.

(2.) The facts giving rise to the present second appeal may briefly be stated thus : The appellant herein, as plaintiff, filed T.S. No. 237/02 for declaration that the agreement dated 29.09.01 executed between the plaintiffs and defendant, was binding on the parties, and for mandatory injunction.

(3.) The pleaded case of the plaintiffs was that the land measuring 1 K 10 L covered by Dag No. 156 and K.P. Patta No. 47 was inherited by the plaintiffs and the defendant and the suit land was partitioned amongst the plaintiffs and the defendant in the Perfect Partition Case No. 300 (ka)/98. As per the said partition, the plaintiff No. 1 and defendant got 9L each and plaintiff No. 2 got 12 L of land. Thereafter, a written agreement was executed amongst the plaintiffs and the defendant and as per clause IV of the said agreement, the defendant was to dismantle the portion of the old Assam Type House occupied by him, in order to facilitate construction of the new house. Although the land was already partitioned amongst three brothers and agreement dated. 29.9.2001 was executed between them for giving full effect to such partition, the defendant was reluctant to dismantle the old house. Rather, he tried to demarcate the land afresh according to his own convenience and therefore, the plaintiff filed the suit for declaration, that the agreement entered into between the defendant and plaintiffs were binding on both the parties, and also for mandatory injunction.