Decided on August 07,1951

Sehopanit Shah Appellant
Chabilal Tewari And Others Respondents

Referred Judgements :-



Ram Labhaya, J. - (1.)THIS is an appeal from the judgment and decree of the learned Additional Sub -Judge, A.V.D., dated the 31st May, 1945 by which the order of the Munsiff, Nowgong, dated the 15th September 1944 decreeing plaintiff's suit was reversed and the suit dismissed. The plaintiff has appealed to this Court.
(2.)PLAINTIFF , appellant claimed to have purchased about 73 bighas of land appertaining to patta No. 11 from Shahasram by a registered sale deed dated 15th November 1940 for Rs. 500 which formed the sale consideration. His case was that he got delivery of possession from his vendor. According to him, out of the land purchased by him, 5 puras of culturable land were settled on Ramani Mohan Namasudra and he got a kabuliyat from him on 7th Baisakh 1848 B.S. On the same day another 8 puras of culturable land were said to have been settled on Binode Ram Namasudra. He also executed a kabuliyat in plaintiff's favour. In the kabuliyats it is stated that the land which formed the subject matter of two settlements was in the possession of the plaintiff. The recital reproduced below appears in both the documents:
I take settlement of about 5/3 puras of cultivable land out of the lands of periodic patta No. 11 of Bhukau Basti in your possession by virtue of your registered deed on condition of delivering one -fourth of the crops to you.

The two kabuliyats were executed some 6 months after the execution of the sale deed in plaintiff's favour. Both Ramani and Binode are defendants in the case (defendants 3 and 4). A few days after the execution of the sale deed in plaintiff's favour, Jagannath Tewari, defendant, and Chabilal Tewari, defendant 2, his nephew, applied to the Sub Deputy Collector, Kamrup, for the mutation of the entire land in suit in their favour alleging that the land had been sold to them long before the alleged sale in plaintiff's favour. The plaintiff also applied for a mutation on the basis of his registered sale deed. The two kabuliyats were executed in plaintiff a favour during the pendency of these mutation proceedings. In spite of these kabuliyats, a mutation was ordered to be attested in favour of defendants 1 and 2 by an order of the Sub -Deputy Collector dated the 23rd September, 1941. In that litigation defendants 3 and 4 repudiated the kabuliyats and deposed in favour of defendants 1 and 2 by stating that they were in occupation of the land as adhiars on behalf of the defendants. Plaintiff preferred an appeal from the order of the Sub -Deputy Collector. This was dismissed by the Deputy Commissioner by his order dated 27th February 1943.

Having failed to obtain a mutation in his favour, plaintiff sued for a declaration of his right, title and interest to the land in suit measuring 73 B. 15 L. He also prayed for its khas possession against the first four defendants. He impleaded the widow of his vendor as a pro forma defendant in the case. The basis of his title was the sale deed purporting to have been executed in his favour by Shahasram, the original owner of the land.

(3.)PLAINTIFF 's case was that the land in suit belonged to Shahasram and he was in enjoyment and possession thereof. There is no suggestion in para 3 of the plaint that he possessed the land through tenants. In para 3, it was expressly stated that he sold the lands to the plaintiff and delivered possession to him and that the plaintiff after taking possession of the lands had been exercising his sights as an owner. Even in this para there is no suggestion that there were any tenants in occupation of the land at the time of Bale and they attorned to the plaintiff. In para 4, it was alleged by the plaintiff that out of the Bait land he settled 19 bighas on defendant 8 and 20 bighas on defendant 4 on 7th Baisakh, 1848 R.S. and got kabuliyat from them. The allegations in paras 2 to 4 of the plaint read with the kabuliyats would show that plaintiff's case was that at the time of the settlement of the culturable lands on defendants 8 and 4, he delivered possession of the lands settled on them. Plaintiff denied title of defendants which was claimed on the basis of an oral Bale. He treated them as trespassers and claimed declaration of title and possession.

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