T. Amarnath Goud, J. - (1.)This is an appeal under Sec. 100 of the CPC, 1908 against the Judgment dtd. 18/5/2018 by the District Judge, Unakoti Judicial District, Kailashahar in Title Appeal No. 16 of 2017 dismissing the appeal, affirming the judgment and decree by the Civil Judge (Senior Division) Unakoti, Kailashahar in T.S. No. 17 of 2016.
(2.)The brief fact of the plaintiff's (the appellant herein) case inter-alia is that the suit land originally belonged to the father of the plaintiffs namely Sudhir Rn. Acharjee (now deceased). The suit land is homestead ('bastu') class of land and has a drain running from east to west for the purpose of drainage on the suit land. After the death of said Sudhir Rn. Acharjee, the plaintiffs and defendant No. 2 inherited the property and their name also got mutated in the khatian No. 634 of Mouja Birchandranagar. Subsequently, on 3/9/1997 the plaintiffs and defendant No. 2 sold 0.10 acres of land to the defendant No. 1 vide registered sale deed No. 1-1413 of 1997. Accordingly, the possession was also handed over. Eventually at one point of time the defendant No. 1 started construction on the suit land which as per the plaint, got competed in the year 2012. On 25/12/2012 the plaintiff came to know about this forceful encroachment of the suit land by the defendant No. 1 and on 3/5/2016 the defendant further occupied 0.01 acres of land on the southern side of 'A' schedule which is a drain and described in 'C' schedule of the plaint. Thereafter the plaintiffs requested the defendant to hand over the possession of the suit land but, to no result.
(3.)Thereafter, the appellant (the plaintiffs in TS 17 of 2016) instituted a title suit against the respondents (the defendants in TS 17 of 2016) praying for a decree declaring right, title and interest and recovery of possession of the suit land pertaining to Mouja Birchandranagar, Khatian (record of rights) No. 634, C.S. Plot Nos. 3356/3913, measuring -0.04 acres which is a part of land pertaining to the sam khatian No. 634, C.S. Plot NOs. 3355, 3356/3919, 3369, 3370 and measuring -1.01 acres. The suit land is described explicitly in schedule 'B' of the plaint. There are two more schedules 'A' and 'C'. The 'A' schedule of land is the total land of the plaintiff whereas 'B' and 'C' are part of it. The 'C' schedule of land pertains to the same khatian and is a drain of one feet length and measuring 0.01 acres of land. The plaintiff sought recovery of possession of land described in 'B' and 'C' schedule also.
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