(1.) Heard Mr. S. K. Goswami, learned counsel for the appellants and Mr. S.Sarkar, learned counsel for the respondents.
(2.) The judgment and decree dated 13.6.2011 passed in Title Appeal No. 7/2010 by the learned Civil Judge, Nalbari is under challenge in this second appeal. The appellants are the defendants in Title Suit No. 31/2007 in the court of learned Munsiff No. 1 at Nalbari which was filed by the plaintiffs respondents for recovery of khas possession and permanent injunction.
(3.) The case of the plaintiffs respondents is that the predecessor-in-interest of the defendants appellants late Harakanta Das sold the suit land to the plaintiff respondent No.1 and one late Jaltipriya Barman vide sale deed in the year 1970 and delivered possession of the same . The plaintiffs respondents constructed houses thereon and possessing one part after letting out the other part to the tenant. The plaintiff respondent No. 1 and Jaltipriya applied for regular mutation but the Circle Officer refused to grant the mutation order on the ground that the names of the heirs of Harakanta were mutated over the entire share of land of late Harakanta in the suit patta. Finding no alternative the plaintiff respondent No. 1 and Jaltipriya instituted Title Suit No. 15/1980 in the court of Munsiff No.2, Nalbari for declaration of right, title and interest, confirmation of possession over the suit land and for a precept directing the Circle Officer to mutate the name of the plaintiffs therein. The said Title Suit No. 15/1989 was decreed vide judgment and decree dated 11.6.1986 declaring right, title and interest therein over the suit land therein, confirming the possession of the plaintiffs respondents and also issued precept to the revenue authority to mutate the names of plaintiffs respondents. The said judgment and decree was challenged in the first appellate court by the defendants appellants which was dismissed and RSA 2/1999 was also filed which was also dismissed vide judgment dated 30.3.2006. Thereafter on the basis of the precept issued by the executing court in Title Execution No. 4/2006, the names of the plaintiff respondent No. 1 and that of Jaltipriya were mutated. During the continuation of the execution proceeding the defendants appellants No. 2 and 3 dispossessed the plaintiff respondent on 24.5.2006 and forcefully entered into the suit land and started construction of a plinth by demolishing existing house over about 1 katha of suit land. A proceeding under Section 145 Cr.P.C. in respect of said 1 katha of suit land was initiated and the suit land was attached. But the defendants appellants started residing over the suit land by constructing temporary shed and virtually dispossessed the plaintiffs respondents from the suit land. Thereafter the present suit was filed.