BRAJA KALITA Vs. BIPIN CHANDRA KALITA

JUDGEMENT

(1.) THE judgment-debtors in Title Suit No. 68 of 1986 filed the present petitions invoking the jurisdiction of this Court under Article 227 of the Constitution of India challenging the order dated 22. 6. 2009 passed by learned executing Court rejecting the applications, which were registered as Misc (J) Case Nos. 37 of 2008 and 38 of 2008, filed under Section 47 read with Section 151 of CPC in Title Execution Case No. 13 of 2007.

(2.) SINCE both the petitions arise out of a common order passed in the aforesaid two Misc Cases by learned executing Court, they are taken up together for hearing and disposal, as agreed to by learned counsel for the parties.

(3.) THE case of the plaintiff in the suit was that late Ratan Kalita and late Jurai Kalita, two brothers, owned and possessed the land measuring 1b-1k-3l described in Schedule B to the plaint, in equal shares and in or about the year -1956, half portion of the said land owned and possessed by Ratan Kalita was acquired by the electricity department of the Govt. of Assam, for which compensation was paid. Out of remaining land, Jurai Kalita, the father of the defendant Nos. 1 and 2 (petitioner in CRP No. 290/09 and petitioner No. 1 in CRP No. 279/09, respectively) and the husband of Smti. Rahan Kalita (defendant No. 3-since deceased) sold 1k to Ratan Kalita. On the death of Ratan Kalita, his widow Smti. Champa Kalita became the absolute owner in respect of the said 1k of land, being the only heir. On 26. 4. 1965, Smti. Champa Kalita sold the said 1k of land (described in Schedule A/2 to the plaint) to Smti. Golapi Kalita by a registered deed of sale, who in turn on 1. 11. 85, sold the said land with a thatched house thereon to the plaintiff by a registered deed of sale and also delivered possession to her. It has also been pleaded in the plaint that the defendant No. 1 (petitioner in CRP No. 290/09) instituted a proceeding under Section 145 Crpc which was registered and numbered as Misc Case No. 191 m/1968, wherein the possession was declared in favour of the said defendant, thereby compelling the plaintiff (opposite party in the revision petitions) to institute the suit for declaration of right, title, interest and confirmation of possession and in the alternative, for passing a decree for delivery of khas possession. The suit was contested by the defendants denying the claim of the plaintiff and contending interalia that the thatched house on the suit land had been constructed by them and that they had been in absolute possession of the suit property. The defendants also denied the claim that Jurai Kalita during his lifetime sold 1k of land from his share to his brother Ratan Kalita by executing a registered deed of sale. It has further been pleaded in the written statement that the suit land had never been in possession of Ratan Kalita.