LALIT MOHAN NATH Vs. ON THE DEATH OF MOHAN NATH, HIS HEIRS JNANENDRA NATH AND OTHERS
LAWS(GAU)-1973-8-5
HIGH COURT OF GAUHATI
Decided on August 10,1973

Lalit Mohan Nath Appellant
VERSUS
On The Death Of Mohan Nath, His Heirs Jnanendra Nath And Others Respondents

JUDGEMENT

Baharul Islam, J. - (1.) THIS application by the plaintiff under Section 115 of the Code of Civil Procedure is directed against the order of remand passed by the Assistant District Judge No. 2, Cachar. Silchar, in Title Appeal No. 83 of 1969.
(2.) THE plaintiff filed the suit for declaration of his right, title and interest in the suit land measuring 5B. 7K. 12 Ch. 10 Gondas. His case is that the suit land belonged to one Jagat Chandra. Nath, who died leaving four sons, defendants Nos. 6 to 9. and one Jatindra Chandra Nath, father of defendant No. 9 and the husband of defendant No. 10. On 31 -12 -1956 the plaintiff purchased the suit land from defendant No. 6 by a registered deed and was in exclusive possession thereof pursuant to an amicable partition amongst the co -sharers. The plaintiff alleges that he was put in possession of the land purchased by him within specific boundaries. As defendants Nos. 4 to 6 disturbed him in his possession, he filed a case under Section 145 of the Code of Criminal Procedure against them, but the Criminal Court declared possession of the land in favour of the second party, namely, defendants Nos. 1 to 4. The plaintiff, therefore filed the present suit for declaration of his right, title and interest in the suit land as stated above. He also prayed, in the alternative, for a decree for khas possession in case he failed to prove his possession and also prayed for refund of the entire purchase -money from his vendees (defendants 1 to 4) in case he failed to prove title to the entire land or refund of the proportionate purchase -money in case of his failure to prove his title to a part of the suit land. Defendant No. 5 has filed a written statement and contested the suit. His case is that he purchased the suit land from defendants No. 6 to 10 on 15 -5 -1954 by a registered sale deed and got possession thereof and was in possession. He denies plaintiff's title to, and possession of, the suit land. He denies any interest in, or possession of. the suit land by defendants 1 to 4 also. He avers that the sale by defendant No. 6 in favour of the plaintiff was without consideration. He, however, admits that the patta number and the dag number of the land purchased by him from defendants 6 to 10 do not tally with the land in suit.
(3.) DEFENDANTS 6 to 10 also have filed a joint written statement. Their case is that their predecessor -in -interest, Jagat Chandra Nath, died leaving defendants 6, 7 and 8 and their elder brother Jatindra Chandra Nath. since deceased. Jatindra died leaving defendants Nos. 9 and 10 as his sole heirs. There was an amicable partition of their properties on 12 -5 -1955 in pursuance of which the co -sharers got their respective shares partitioned and were in possession of their respective shares. Accordingly defendant No. 6 held exclusive possession of the suit land which he sold to the plaintiff on 31 -12 -1956. In substance, they support the case of the plaintiff.;


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