LEPA RAM BORO Vs. NABIN CHANDRA BORO

JUDGEMENT

(1.) This Second Appeal preferred by the defendants/appellants has arisen in the following circumstances: The respondents as plaintiffs being the President, Secretary and Members of Uttar Bagaribari Krishak Santha, instituted a title suit before the Munsiff No. 1 Mangaldoi, for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit land, which is a Tank. It was pleaded inter-alia that the Uttar Bagaribari Krishak Santha was formed in the year 1970 and registered under the provisions of the Societies Registration Act. The Tank-in- question in the suit land was formerly an abandoned tank covered with grass, plants, weeds etc. which was in due course cleared by the members of the plaintiffs' association on incurring huge expenditure and started therein a Fishery and also grew paddy on the banks of the said Tank. The land comprising the Tank though was a touzi land, the Revenue Authority erroneously mutated the names of the plaintiffs Nos. 3,4,5 and 6 in respect of the said suit land. The plaintiffs all along were exclusively possessing the Tank by rearing fishes and on payment of TB revenue to the Government. That the defandants who came from villages Sukuliapara and Chenialpara, with the view to grab the suit Tank for their personal benefits, were trying to dispossess the plaintiffs from the suit Tank and on 6.6.80, the defendants carrying some weapons and implements of fishing, entered into the suit Tank and took possession over the suit Tank and started fishing therein. The plaintiffs resisted the defendants in their move to acquire possession thereon, and finally, drove the defendants away. The defendants then falsely lodged an FIR before the Officer-in-charge, Khoirabari Police Station, but the officer-in- charge on investigation, found that the suit Tank was in possession of the plaintiffs. That the defendants thereafter again tried to dispossess the plaintiffs and caused some damage to the suit Tank. That the plaintiffs apprehending further such endeavours/ attempts from the defendants to dispossess the plaintiffs from the suit Tank, instituted the above suit seeking permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit Tank. The: defendants contested the Suit and filed written statement pleading that they were in exclusive possession of the suit Tank since last twenty years. The defendants also raised the plea of counter-claim to the effect that the defendants and some others by forming a committee known as Sukuliapara Chenialpara Rajahua Krishak Silpa Samabai Samity, have been possessing the suit Tank since fifty years and accordingly sought for permanent injunction restrinining the plaintiffs from dispossessing them. On the pleadings of the parties, the trial Court initially framed the following issues.

(2.) The defendants in their written statement had alleged that there were other members of the defendants' Samity who ought to have been impleaded as parties in the suit and on their absence, the suit was liable to be dismissed for non-joinder of necessary parties. The learned trial Court, as indicated earlier, framed a definite issue on the aforesaid plea, being issue No. 2 which was framed before remission of the case by the High Court for fresh trial. The learned trial court, on consideration of the materials on record and the evidence adduced, came to the following conclusion:-

(3.) As regards issue No. 4, the learned trial court considering the evidence on record, more particularly the evidence of DWs 1 and 2 and exhibits Kha(l) and Ga, rejected the claim of the defendants that the suit Tank was peacefully possessed by the defendants since 15.4.75. The issues in the counterclaim were contradicted by the trial court as mentioned earlier. The learned trial court in the light of the decisions in issues Nos. 1,2,3 and 4, accepted the claim of the plaintiffs' Sangha and accordingly held that the plaintiffs were entitled to a decree of permanent injunction as sought for. On appeal, the learned appellate court affirmed the judgment and decree of the learned trial court. Hence this second appeal before this court.