DWIJAMONI SINGH Vs. AMAL PAUL CHOUDHURY

JUDGEMENT

(1.) This second appeal by the defendant is preferred against the judgment and decree passed by the learned Civil Judge No. 1, Cachar in Title Appeal No. 42/2010, whereby the learned first appellate court dismissing the appeal filed by the defendant upheld the judgment and decree passed by the learned trial court in T.S. No. 167/2007.

(2.) The respondent, as plaintiff filed the TS No. 167/2007 for declaration of right, title, interest, confirmation of possession and cancellation of sale deed in favour of the defendant. The case of the plaintiff was that one Babahan Singh was the exclusive owner of the land covered by second RS Patta No. 31, which contained Dag Nos. 113, 115, 118, 119, 120, 121, 122 & 123 and the total land in the entire patta was 6 bigha 10 katha. Originally the land of R.S. Patta No. 31 was included in R.S. Patta No, 11, 28 & 29 and during re-settlement operation the second R.S. Patta No. 31 was issued in favour of Babahan Singh. The Dag No. 122 of the said R.S. Patta No. 31 contained total land of 1 bigha 6 katha 14 chatak and the original Dag No. of 122 was 95 of patta No. 29. The land covered by Dag No. 95 of R.S. Patta No. 29, which was later on included in Dag No. 122 of R.S. Patta No. 31 was sold by Babahan Singh to one Gopinath Pal by registered sale deed on 20.04.1955 and delivered possession. Later on, Gopinath Pal sold the said land of Dag No. 122 to one Ganesh Chandra Pal by registered deed on 26.05.1960 and delivered possession. After death of Ganesh Ch. Pal, his legal heir sold 6 katha 8 chatak of land covered by Dag No. 122 of R.S. Patta No. 31 along with other land to the plaintiff by a registered deed on 23.09.1997 and thereafter again by another registered sale deed on 11.09.1998, the plaintiff purchased 1 katha 2 chatak of land from Dag No. 122 of R.S. Patta No. 31 along with other land from the legal heir of Ganesh Ch. Pal and the plaintiff had been possessing the said land by right of purchase. While the plaintiff had been possessing total land measuring 7 katha 10 chatak of Dag No. 122 purchased from the legal heir of Ganesh Ch. Pal, the defendant attempted to dispossess the plaintiff from the said land, in the year 2004, claiming that they have purchased the said land. Thereafter, the plaintiff also received a notice from the Executive Magistrate in respect of a criminal proceeding under Section 145 CrPC initiated by the defendant and accordingly, plaintiff made an enquiry in the office of the Sub-registrar and came to know that a sale deed was allegedly executed by one Jayanti Manipuri on 01.03.2000. After obtaining the certified copy of the said sale deed, the plaintiff could know about the alleged sale deed purportedly executed by Jayanti Manipuri in favour of the defendant, whereby the land measuring 19 katha 10 chatak of Dag No. 122 of R.S. Patta No. 31 was shown to have been sold to the defendant. It was further stated that the original pattadar Babahan Singh sold the entire land of Dag No. 122 measuring 1 bigha 6 katha 14 chatak to Gopinath Pal, who in turn sold the land to Ganesh Ch. Pal and as such no land in Dag No. 122 was left out and therefore, the said deed in favour of the defendant purportedly executed by Jayanti Manipuri giving boundary of the land of the plaintiff was fraudulent and collusive and therefore the plaintiff filed the suit for declaration of right, title & interest over the suit land and also for cancellation of the sale deed in favour of the defendant.

(3.) The defendant contested the suit by filing written statement. The pleaded case of the defendant was that Umed Ali, Somed Ali and Arjid Ali, sons of Tera Mia, were the original owner of land measuring 14 bigha 14 katha 11 chatak covered by Dag No. 95, 107, 109, 110, 111 & 726 of C.S. Patta No. 16 of Mouza-Tarapur. One Uriba Singh purchased 3 bigha 6 katha 10 chatak of land out of Dag No. 107, 109, 110 & 111 of C.S. Patta No. 16 from the aforementioned three pattadars and got his name mutated in the record of right. Uriba Singh died leaving behind his son Kunja Singh as the sole heir and successor in respect of the land measuring 3 bigha 6 katha 10 chatak purchased from Umed Ali, Somed Ali and Arjid Ali. The said Kunja Singh sold 4 bigha 4 chatak of land out of Dag No. 95 of R.S. Patta No. 29 to Babahan Singh and remaining land was in his possession. Kunja Singh died leaving behind his son Samu Singh and Samu Singh also disposed of some land out of the total land inherited by him from his father Kunja Singh, and ultimately he had been possessing the land measuring 2 bigha 6 chatak, which was inherited by his sister Jayanti Manipuri, as Samu Singh died unmarried. Out of the said 2 bigha 6 chatak of land in R.S. Patta No. 29, land measuring 1 bigha 13 katha 2 chatak was surveyed and included in second R.S. Patta No. 31 and Dag No. 123. However, the name of Jayanti Manipuri was not recorded in R.S. Patta No. 31 nor the Dag No. 123 was included in the aforementioned second R.S. Patta No. 31. Accordingly a miscellaneous case was filed being M.C. No. 28 of 1984-85 and as per order passed in the said case, name of Jayanti Manipuri was recorded in second R.S. Patta No. 31. Said Jayanti Manipuri sold 19 katha 10 chatak of land of R.S. Patta No. 31 of Dag No. 122, which was earlier included in Dag No. 109 and Patta No. 16 and, later on in R.S. Patta No. 29 and Dag No. 95, to the defendant by executing a registered deed through her attorney. The defendant have acquired valid title over the said land measuring 19 katha 10 chatak by right of purchase from Jayanti Manipuri and the plaintiff has no right title and interest over the suit land.