ON THE DEATH OF RESPONDENT NO. 1 HIS LEGAL HEIRS SURENDRA CHAUHAN AND ORS. Vs. HANGSRAJ CHOUHAN AND ORS.

JUDGEMENT

(1.) THIS Second Appeal has been filed by the Plaintiff. The Plaintiff brought a suit for declaration of title and recovery of possession. The case of the Plaintiff is that he is the owner of a plot of land covered by Annual Patta No. 52. One Shamlal Nunia. predecessor -in -interest of the Plaintiff died in the year 1960 -61 leaving the Plaintiff alone as his heir. The Plaintiff occupied and possessed the land by right of inheritance and on payment of the premium got the suit land converted to periodic Patta land in his name vide order dated 13.5.63. The Defendant had no residential accommodation and as such approached the Plaintiff to allow them to reside in the house as described in the schedule of the plaint as a permissive occupier. Taking advantage of their stay in the house in question, the Defendants forcibly occupied the plot of land as described in schedule 'Ka" of the plaint. It was further learnt by the Plaintiff that the Defendants got their names mutated in respect of the suit land on the basis of purchase and got the separate patta in collusion with Lat Mndal. The Plaintiff claimed that there was no sale of any land to them and as such the Plaintiff filed the suit, for declaration of right, title and interest in respect, of the plot of land as mentioned in schedule 'Ka' and 'Kha' of the plaint and for delivery of vacant khas possession by evicting the Defendants there from and for a further declaration that the mutation made in the names of Defendants is void. The Defendent filed a written statement in addition to the usual lease, the defense taken up was that he is actual pattadar of the land and the patta of the land was issued in the name of Defendant No. 1 The further case was that the father of the Defendant No. 1 and the father of the Plaintiff were brothers. The father of the Defendant No. 1, Ram Rup died while the Defendant No. 1 was minor and the Defendant No. 1 was brought up by late Shamlal Nunia and the suit land fell in the share of Defendant No. 1 and accordingly the revenue patta was issued in his name.

(2.) A number of issues were framed and the Plaintiff examined 2 witnesses and exhibited 3 documents while the Defendant did not examine any witness, but produced certain documents which are public documents and they were marked as Ext. XI, X2 and X5. On the basis of evidence adduced by the parties, the learned Munsiff decreed the suit as prayed for. The learned Munsiff found that the original number of the Annual Patta was 59 and not 52 and it was this Annual Patta 59 which was included under PP 72 and portion of which subsequently included in PP 114. It was found by the learned Munsiff that the oral evidence together with Ext. 2 abundantly made it clear that original owner of the plot of land measuring 8 bighas 4 Kathas 3 Lechas was one Shamlal Nunia, father of the Plaintiff and the said plot of land was converted to PP 72. It was further found that the Plaintiff is in possession of the land as described in Schedule 'Ka' of the plaint and the other portion was in possession of the Defendant. The learned Munsiff found title in favour of the Plaintiff and accordingly the suit was decreed. Thee was an appeal and the learned lower appellate Court without discussing the evidence both oral and documentary reversed the judgment and allowed the appeal and dismissed the suit.

(3.) FURTHER there is no justification that the appellate Court, should interfere with the findings of fact arrived at by the trial Court unless there is wrong appreciation of evidence and findings of fact is not biased on the materials on record, That is what is lacking in the instant case. Accordingly, the appellate judgment dated 7.4.1993 passed in TA 57/91 by the learned Asstt. District Judge, Nagaon (now Civil Judge, Senior Division, Nagaon) shall stand quashed set aside and this matter shall now go back to the appellate Court to hear the matter afresh and to decide the appeal in the accordance with law. Parties appear before the appellate Court on 21.12.1998 to receive further instruction in the matter.