GOPI MOHAN NATH Vs. GOPAL NUNIA & OTHERS

JUDGEMENT

(1.) Heard Mr. N. Choudhury, learned counsel for the appellant. Also heard Mr. BK Goswami, learned Senior Advocate assisted by Ms T. Goswami, learned counsel, appearing for the respondents.

(2.) This appeal is directed against the judgment and decree dated 24.12.2001 passed by the learned Additional District Judge, Cachar, Silchar, in TA No.5 of 2001 dismissing the appeal and upholding the judgment and decree dated 5.5.2001 passed by the learned Civil Judge (Senior Division) No.2, Cachar Division, Silchar, in TS 58 of 1984 dismissing the suit.

(3.) The relevant facts necessary for the purpose of disposal of this appeal may be stated, thus ; The present appellant as plaintiff along with proforma defendant Nos 15-28 are the owners of the entire land pertaining to second RS Patta No.3 of Mauza Tarapur, Part VIII PS Barakpar and out of the said land, the plaintiff is the exclusive owner of the land described in the Schedule to the plaint by amicable family arrangement with other co-pattadars of the patta. Out of the land described in the Schedule to the plaint, the entire land covered by Dag No.335 is a paddy land and the same was in personal cultivation of the plaintiff s predecessor and then, to the personal cultivation of the appellant-plaintiff. The entire land covered by Dag Nos 363 and 364 are road side land. One Bhutai Ram Nunia, father of Senapati Nunia, and grand father of principal defendant Nos 1 and 2 was allowed to stay in the land covered under Dag Nos 353 and 354 as licensee on condition that he would vacate the land as and when required and accordingly, Bhutai Ram Nunia started residing on the land by constructing 2 temporary thatched houses. The other principal defendants did not take any permission from the plaintiffs father or from the plaintiff for staying on the suit land or in any part thereof. The principal defendant Nos 1-7 encroached upon the plaintiffs patta land in Dag No.353 situated just adjacent to the land in the South of Dag No.354 and started digging a pond on 24.1.1983. The appellant-plaintiff raised objections but the respondents-defendants did not pay heed to it. The plaintiff then filed a Case No. 13 M/83 under section 144 Code of Criminal Procedure, 1973, before the Executive Magistrate which was converted to a proceeding under section 145 of Code of Criminal Procedure, 1973. The principal defendants, in the said proceeding, pleaded that they are the tenants under the plaintiff and they obtained Katcha Khatian in respect of the suit land. But in fact, they are never the tenant under the plaintiff and they obtained the Katcha Khatian in collusion with the land record staff and so the said Khatian was subsequently cancelled. The said proceeding was dropped by the learned Executive Magistrate by an order dated 10.8.1983 on default of the plaintiff. The further allegation of the plaintiff was that the principal defendants encroached half portion of the land in Dag No.355 causing change to nature of his patta land. Moreover, the land under Dag Nos. 353 and 354 is required for his own personal use. The plaintiff on 15.5.1983 requested the principal defendant Nos. 1 and 2 and Smti Senapati Nunia to vacate the land but they refused to comply with the request rather they threatened to completely change the nature of the suit land by digging a pond in the remaining patta land of 355 and by constructing permanent houses, etc, on the suit land.