MAHENDRA BORA Vs. GUNA BORA

JUDGEMENT

(1.) Heard Mr. P. P. Baruah, learned counsel for the appellant. Also heard Mr. G.N. Sahewalla, learned Sr. counsel appearing for the respondent. This second appeal has been preferred against the judgment and decree dated 13-02-2003 passed by the learned Civil Judge (Sr. Div.), Sivasagar in Title Appeal No. 03/1994 reversing the judgment dated 24-01-1994 and decree dated 02-02-1994 passed in Title Suit No. 91/1990 by the learned Munsiff No. 1, Sivasagar dismissing the suit filed by the plaintiff/ respondent.

(2.) The facts of the case, as emerged from the record is that the suit land originally belonged to the predecessor-in-interest of the plaintiff. The father of the plaintiff were four brothers, namely, (1) Sadananda Bora, (2) Phanidhar Bora, (3) Bapuram Bora and (4) Biren Bora. All the brothers except Biren Bora have died. Phanidhar Bora and Bapuram Bora died without leaving behind any legal heirs. Biren Bora went away to some other place leaving behind his house and landed property under the care and custody of Sadananda Bora i.e. the father of the plaintiff. Sadananda Bora died leaving behind two sons, namely, (1) Guna Bora i.e. the plaintiff and (2) Ratneswar Bora. According to the plaintiff, Ratneswar Bora had given him the power to institute the suit on his behalf. It is the case of the plaintiff that the defendant had taken the suit land on mortgage from his father during their life time and had been possessing the same. The father of the plaintiff died in the year 1977 and before his death he wanted to take over possession of the suit land from the defendant but failed to do so. The plaintiff has, therefore, instituted the suit for redemption of mortgage on payment of mortgaged money and also for recovery of possession of the suit land.

(3.) The defendant contested the suit by filing his written statement whereby the defendant had pleaded that the suit was not maintainable in the eye of law as well as in the facts and circumstances of the case. It was further pleaded that there was no cause of action of the suit and that the suit was barred by limitation as well as under the principles of waiver, estoppels and acquiescence. While denying the statement made in the plaint the defendant had pleaded that he had been possessing the suit land since 28- 03-1977 by denying the right, title and interest of the predecessor-in-interest of the plaintiff. The defendant had claimed that late Phanidhar Bora died in the house of the defendant after being looked after by him including providing medical care and treatment during his old age. Out of gratitude towards the defendant, late Phanidhar Bora had sold a plot of land measuring 1B-13L covered by Dag No. 622 of periodic patta No. 227 of Gharfalia Japihojia Gaon for consideration of Rs. 2475/- to the defendant by executing a "katcha deed" and agreed to execute permanent sale deed in favour of the respondent/ defendant but could not do so since he had died before execution of formal sale deed. The remaining part of land measuring 1B-4K- 18L has been in possession of the respondent defendant who claims to have acquired title in respect thereof by virtue of adverse possession by denying the title of the appellant plaintiff and others since 1977. Defendant had, therefore, claimed right over the land measuring 1B-4K-18L by means of adverse possession and hence, prayed for dismissal of the suit with cost.