TUPIDHAR GOGOI Vs. GOPESH CHANDRA DAS

JUDGEMENT

(1.) This appeal by the defendant No. 1 in Title Suit No. 92/1968 is directed against the judgment and decree dated 10.06.1993 passed in Title Appeal No. 32/1986 by the learned Assistant District Judge, Tinsukia (now Civil Judge) dismissing the appeal and affirming the judgment dated 30.08.1975 passed by the learned Munsiff No. 1, Dibrugarh in Title Suit No. 92/1968 decreeing the plaintiffs' suit for declaration of right, title and interest in respect of the land described in Schedule-2 to the plaint and for recovery of khas possession by ejecting the appellant (defendant No. 1).

(2.) The predecessors-in-interest of appellant Nos. 1(a) to 1(k), namely Gopesh Ch. Das and Smti. Basanti Bala Das instituted Title Suit No. 92/1968 in the Court of the learned Sadar Munsiff at Dibrugarh against the present appellant, Sri Tupidhar Gogoi, Md. Eusuf and Aminullah as principal defendant Nos. 1, 2 and 3 and 5(five) others as proforma defendants praying for a decree declaring their right, title and interest in respect of a plot of land measuring 2 Kathas, 8 Lechas in Dag No. 594 of Periodic Patta No. 144 of Digboi town, Mouza - Makum together with a house standing thereon and in occupation of the present appellant/defendant No. 1, bounded by in the North - plaintiff's own land, in the South - AOC Road, in the East - Saheb Dayal Tewari and in the West - Road, contending inter alia that the plaintiffs purchased a plot of land measuring 1 Bigha, 1 Katha, 5 Lechas from its owner Smti. Tezubala Devi by a registered deed of sale dated 25.04.1966 (Exhibit-1), of which she was in exclusive possesion and fell on her share, on amicable partition amongst the co-pattadars, alongwith the houses standing thereon and though the plaintiffs pursuant to such purchase got the actual physical possession in respect of the land measuring 3 kathas 17 Lechas out of the said land, the remaining land measuring 2 Kathas 8 Lechas with houses standing thereon was at the time of such purchase in occupation of the appellant/defendant No. 1 as tenant under said Smti. Tezubala Devi on payment of the monthly rent of Rs. 40/-. It has further been pleaded in the plaint that the appellant/defendant No. 1 being informed about such transfer attorned to the plaintiffs and though agreed to pay the monthly rent to them, he avoided such payment of monthly rent on some pretext or other for which the notice of ejectment dated 07.12.1966 (Exhibit -5) was issued asking him to quit and deliver the vacant possession of the house immediately on expiry of 31st December, 1966 but he refused to accept the said notice. According to the plaintiffs, the appellant/defendant No. 1 became refractory and in collusion with Aminullah (defendant No. 3), one of the sons of the recorded pattadar Md. Safi, got a sale deed executed by said Md. Aminullah in favour of Mr. Eusuf (defendant No. 2), which gave rise to lodging of a complain, which was pending. The plaintiffs further pleaded in the plaint that another ejectment notice dated 28.03.1968 (Exhibit-14) was thereafter, issued to quit and give up the vacant possession of the rented houses in favour of the plaintiffs on expiry of 30th April 1968, which was also refused to accept by the appellant/defendant No. 1. It has further been pleaded in the plaint that Aminullah (defendant No. 3), the vendor of Md. Eusuf (defendant No. 2), had no right, title and interest over the suit land and the sale deed (Exhibit-X) executed by said Aminullah in favour of the defendant No. 2 is a shame, colourable and collusive transaction and does not effect the plaintiffs title. The plaintiffs further pleading in the plaint is that the appellant/defendant No. 1 has collected building materials for construction of the house on the suit land. The plaintiffs, therefore, instituted the suit for declaration of right, title and interest against the principal defendants, namely, Tupidhar Gogoi (present appellant No. 1), Md. Eusuf (defendant No. 2) (whose name has been struck off from the list of defendants vide order dated 04.10.1999 on the prayer of the present appellant) and Aminullah (defendant No. 3, who did not contest the suit by filing any written statement). The names of proforma defendant Nos. 5 (Kurban Dusad); 6 (Bhabi Begum) and 7(Md. Samiullah) have also been struck off from the list of respondents in the appeal vide orders dated 15.6.1995 and 07.06.1996 passed on the basis of the applications filed by the present appellant.

(3.) The said suit has been contested by the present appellant/defendant No. 1 (Tupidhar Gogoi), Md. Eusuf (defendant No. 2) by filing joint written statement denying the claim of the plaintiffs in the plaint and contending inter alia that the appellant/defendant No. 1 (Tupidhar Gogoi) is in occupation of the suit land since 1964 on lease under Md. Eusuf (defendant No. 2) after purchasing the house from Lakheswar Buragohain, who was formerly in occupation of the land on lease initially under Aminullah (the defendant No. 3) from 1954 to 1960 and thereafter, under Md. Eusuf (defendant No. 2) from 1960 to 1963 and subsequently in the year 1967 the appellant/defendant No. 1 purchased the said land by registered deed of sale for valuable consideration from Md. Eusuf (defendant No. 2), who was the rightful owner of the suit land and since then he is in possession of the land as his own having his own houses thereon. In the said written statement it has further been denied that the appellant/defendant No. 1 was ever a tenant under Smti. Tezubala Devi, the vendor of the plaintiffs.