CHANDRAMAL KALITA Vs. PUNU KACHARI

JUDGEMENT

(1.) The present second appeal has been filed by Shri Chandramal Kalita and Sri Lankeswar Kalita who were defendants in T.S. No. 14/89. Sri Punu Kachari plaintiff who is respondent No. 1 in this appeal filed a suit for cancellation of sale deed No. 2988/80 on the allegations inter alia that the said sale deed was procured by the defendants (appellants-herein-in) by playing fraud and by taking undue advantage of his illiteracy and innocence under the cover of a mortgage deed which he had in fact executed in favour of the defendants in respect of mortgage of the suit land. The said mortgage was redeemed by him and his possession over the mortgaged land was restored in the presence of the village Panchayat. The defendants however raised dispute and got the suit land attached in proceedings under Section 145 of the Cr.P.C. From subsequent development it was discovered that under the cover of mortgage deed defendants got a sale deed executed, hence the suit. Apart from the above an additional ground on which plaintiff wanted the sale deed to be avoided cancelled was the plea of operation of statutory bar against acquisition of right, title and interest in the land by the Vandee as created under Section 164 of Assam Land and Revenue Regulation, 1885, hereafter referred for the sake of brevity the Regulation. In this respect it was pleaded by him that the land in suit was situated in village Naptipara within Kaliagaon Mouza, which falls in the Tribal Belt. The defendant being a non-tribal hence was not entitled to purchase the land from the plaintiff who was tribal. On these two grounds the plaintiff wanted the sale deed to be cancelled.

(2.) The appellants filed their written statement and contested the suit inter-alia on the pleadings that the theory of execution of mortgage deed and its redemption by the plaintiff was a false theory. According to the appellant several sale deeds had been executed by the respondent for sale of different partials of land from time to time out of total areas of 7 Bighas of land in his possession, the plaintiff-respondent had sold about 5 Bighas to him on different occasions. It was further pleaded that though the land in suit fell in the tribal belt and that he was a non-tribal whereas the plaintiff was a tribal still the bar created by Section 164 of the Regulation did not have application in respect to the land in suit which formed part of the development scheme as framed for the area by the State Government and such land which falls in the area which is covered by a development scheme is exempt from the bar of Section 164.

(3.) Both the parties led evidence in support of their respective contentions. The trial Court also examined some Court witnesses.