CHANDRA KANTA DEKA Vs. HEM CHANDRA DEKA

JUDGEMENT

(1.) THE appellant shaving lost hands down in the Courts below have projected the Second appeal against the concurrent findings of fact and law. The plaintiff sare the appellants.

(2.) THE plaintiffs' case, in short, is that Baneswar and Fuleswar, while living jointly, had purchased two parcels of land jointly - one in Mouza Shymbari and another in Mouza Dohi and had joint possession over the purchased land. After Baneswar's death his son Asar Deka separated from his (Asar's) uncle Fuleswar in the year 1935. There was a partition, in consequence whereof the parcel of land in Dohi Mouza fell in the share of Fuleswar (father of the present plaintiff) whereas Asar and his brothers got the land in Shymbari Mouza. The plaintiffs are the sons of Fuleswar and the defendants Nos. 1 to 3 are the sons of late Asar Deka. The suit land is in Dohi Mouza and measures 10 Bighas 1 Katha and 15 Lechas. According to the plaintiffs, the suit land had fallen in the share of Fuleswar who was in possession thereof since 1935. After Fuleswar's death his sons (the present plaintiffs) paid land revenue in respect of the suit land. According to the plaintiffs, the suit land which had been mutated in the name of Baneswar, the elder brother of Fuleswar and the Karta of the family, continued to remain in ha name and notwithstanding the partition in the year 1935 it had been mutated in the name of Baneswar's son, after the death of Baneswar and thereafter in the name of Hem Chandra, the defendant No. 1, after the death of Asar. As there had been no dispute between them, the plaintiffs in spite of the knowledge of the mutation in favour of Asar and Hem Chandra did not raise any objection to the mutation. However, on 7-4-1969, the defendant No. 1 sold a portion of the suit land (fully described in Schedule 'B' of the plaint) to defendant No. 4. At this the plaintiffs protested. The defendants Nos. 1 to 3 denied the title of the plaintiffs in the suit land and hence the suit. Inter alia the plaintiffs prayed for permanent injunction restraining the defendants from transferring and/or occupying the suit land. Later, the plaint was amended and a special prayer was made on 28-1-1970 for khas possession of the land in suit.

(3.) IN fact, the crucial question before the Court was as to whether the suit land was the paternal property of the plaintiffs or the defendants and as to which of the parties was in physical possession of the suit land. As many as 7 issues were struck by the trial Court and they were all disposed of in favour of the defendants. The trial Court gave much importance to Issue No. 6, the crucial question, as to whether the suit land is the paternal property of defendants Nos. 1 to 3 and as to whether they were in possession of the same. Thereafter, the trial Court considered as to whether the defendant No. 1 had the authority to sell the suit land. Many other ancillary issues were determined, which are not at all pertinent to the question involved in the second appeal. However, it appears clear that the trial Court while determining the issue in question considered the evidence, oral as well as documentary, and their effect. The trial Court dismissed the suit and an appeal was taken. The appellate Court considered the merits of the case in details and did not find any reason to disturb the findings arrived at by the trial Court. Hence this appeal.