PARTHA SARATHI CHAKRABORTY Vs. GOPAL N

JUDGEMENT

(1.) This second appeal is filed challenging the judgment and decree dated 31.03.2009 passed by the learned Civil Judge No.1, Cachar at Silchar in Title Appeal No.4/2008, whereby learned Appellate Court reversed the judgment and decree passed by the learned Munsiff No.1 in Title Suit No.113/2006 and dismissed the suit of the plaintiff/appellant.

(2.) Facts leading to the present second appeal may be stated as follows :- Gopendra Bhusan Chakraborty, the predecessors of the present appellant filed a suit being Title Suit No.113/2006 (48/2004) against the respondent Gopal Nandan Goswami and Gita Rani Namasudra for declaration of right title and interest, recovery of khas possession, permanent injunction and other reliefs. During pendency of the suit Gopendra Bhusan Chakraborty died and his legal heirs were brought on record. The defendant Nos.3, 4 and 5 were also subsequently impleaded as proforma defendants by way of amendment. The case of the plaintiff was that Prakriti Rani Chakraborty wife of late Gopendra Bhusan Chakraborty was the owner of the land measuring 3 Katha 8 Chataks covered by Second RS. Patta No.163 and Dag No.713/724. Pinaki Chakraborty died in the year 1998 and her legal heirs by executing a registered gift deed on 19.03.2001 gifted the aforesaid 3 kathas 8 chataks of land along with other land to Abhra Kanti Chakraborty, the youngest son of Prakriti Rani Chakraborty. Later on, said Abhra Kanti Chakraborty sold the suit land along with other land to one Ujjal Seal and Amal Mazumdar. Subsequently, the suit land was repurchased by the plaintiff from the said Ujjal Seal and Amal Mazumdar vide registered sale deed dated 26.03.2002. After purchasing the land from Ujjal Seal and Amal Mazumdar the plaintiffs have been possessing the suit land. The plaintiff allowed the defendant to occupy 1 (one) katha of land out of the suit land as permissive occupier. Subsequently, the defendant illegally occupied another 1 (one) katha of land out of the 3 katha 8 chataks. The land illegally occupied by the defendants has been shown in schedule 2 and 3 and the entire suit land has been shown in schedule 1 of the plaint. When the plaintiff asked the defendant to vacate the suit land covered by schedule 2 and 3, the defendants initially sought for time, however, ultimately refused to vacate the suit land and therefore, the plaintiffs filed the suit for declaration of right title and interest on schedule A land measuring 3 katha 8 chataks and recovery of possession in respect of land described in schedule 2 and 3 of the plaint.

(3.) The case of the defendant was that the plaintiffs have no right tile and interest over the suit land, as the suit land was sold to Ujjal Seal and Amal Mazumdar by registered sale deed and possession was delivered to them. Further case of the defendant was that the defendants have been possessing the land measuring 3 katha covered by Khas Dag No. 637, and not the land covered by RS Patta No.163. On the basis of the above pleadings of the parties, learned Munsiff framed the following issues: