CHITTA RANJAN DEY Vs. NILMONI NANDI

JUDGEMENT

(1.) Heard Mr. M. H. Rajbarbhuiya, learned counsel appearing for the appellants. I have also heard Mr. D. Chakraborty, learned counsel representing the respondent Nos.1 to 5. None appears for the remaining respondents.

(2.) This second appeal has been preferred against the concurrent judgment dated 19.05.2008 and decree 27.05.2008 passed by the learned District Judge, Hailakandi in Title Appeal No.53/2006 affirming the judgment dated 26.08.2004 and decree dated 09.09.2004 passed by the court of learned Civil Judge (Senior Division), Hailakandi in Title Suit No.9/1999.

(3.) The facts of the case, shorn of unnecessary details, are as follows. The suit land measuring 18 kathas 14 chattaks in total described in 1st Schedule of the plaint was part of a larger plot of land under possession of Raj Kumar Deb, Gagan Chandra Roy and Suryamoni Roy. The said plot of land under their possession was covered by Dag Nos.522, 523 and 530 of annual patta No.13. According to the plaintiffs, the land covered by Dag Nos.530 and 535 were under the exclusive possession of Gagan Chandra Roy and Suryamoni Roy, who had transferred their possession over the entire land measuring 18 kathas 14 chattaks of Dag No.530 in favour of Radhamadhav Dey by executing a deed of memorandum dated 22.07.1952. Thereafter, Radhamadhav Dey had transferred the possession in respect of the said plot of land in favour of Nitai Nandi i.e. the predecessor-in-interest of the plaintiffs, by executing a deed of memorandum dated 10.01.1953. The said plot of land was thereafter, developed by Nitai Nandi, i.e. the father of the plaintiffs, by carrying out earth filling thereby transforming the land into 'Bhita' land and he had also constructed dwelling houses upon a portion of the land. After the death of Nitai Nandi, the plaintiffs had inherited the suit land and continued to remain in possession over the same. The plaintiffs then applied for grant of periodic patta in respect of the said plot of land by filing application before the competent authority. On the basis of the application filed by the plaintiffs, by the order dated 22.12.1984 passed in Conversion Case No.40/84-85 issued by the learned S.D.C., Hailakandi, periodic patta No.236 was issued in the name of the plaintiff No.1 after deposit of the requisite premium. In this manner, the plaintiffs became the owner in possession of the land described in Schedule-I to the plaint. However, the case of the plaintiffs is that one Madov Chandra Dey i.e. the predecessor-in-interest of the defendant Nos.1 to 5, in collusion with the revenue staff, had illegally got his name mutated in the jamabondi of suit patta No.236 along with the plaintiffs so as to claim his right over the suit land. Having come to know about the said fact, the plaintiffs had filed petitions before the Collector, Hailakandi for cancellation of the mutation entry made in the name of Madov Chandra Dey with regard to the land covered by the suit patta. On the basis of the petition filed by the plaintiffs, Misc. Case No.1/1988 was registered but when the matter was pending disposal before the competent authority, Madov Chandra Dey had expired leaving behind the defendant Nos.1 to 5 as his legal heirs. According to the plaintiffs, taking advantage of the fact that the houses of the defendant Nos.1 to 5 were situated on the adjacent south eastern boundary of the suit land, they had forcibly dispossessed the plaintiffs from the 2nd schedule land measuring about 3 kathas in the year 1998. As such, the plaintiffs had instituted Title Suit No.9/1999 inter-alia praying for a decree declaring their right, title and interest over the 1st schedule land and for recovery of possession of the 2nd schedule land. It transpires from the record that during the pendency of the suit, the plaintiffs were dispossessed by the defendant Nos.1 to 5 from an additional area of 9 kathas of land as a result of which, the plaint had to be amended on 26.11.1999 and the prayer for recovery of khas possession of the 3rd schedule land being the 9 kathas of land had to be incorporated.