BINA DAS Vs. ABDUS SALAM CHOUDHURY
HIGH COURT OF GAUHATI
Abdus Salam Choudhury
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PRASANTA KUMAR DEKA, J. -
(1.) Heard Mr. A. K. Dutta, the learned counsel for the appellants and Mr. M. H. Rajbarbhuiyan, the learned counsel for the respondent. In the discussion hereinbelow defendant-appellant shall mean the father of the appellants as the said father filed the written statement during his life time.
(2.) One Promod Chandra Das, the predecessor in interest of the present appellants was the defendant in Title Suit No. 113/2002 filed by the plaintiff-respondent. It is the case of the plaintiff-respondent that he is the occupancy tenant in respect of land measuring 38 Bs., 19 Ks. and 2 Chs. covered by second RS Patta No. 2, Dag No. 9 described fully in the Schedule I of the plaint and status of occupancy tenant in respect of the said land was declared in the decree passed in Title Suit No. 188/1993 by the learned Sadar Munsiff No. 2, Silchar and his possession over the said land was also confirmed. The said Title Suit No. 188/1993 was preferred against one Alim Miya and Ummer Nessa Wakf Estate represented by its Mutwali Abdul Haniff Choudhury and the Wakf Board of Assam. The said decree was upheld by the first Appellate Court in Title Appeal No. 12/96 and the plaintiff-respondent continued possessing the Scheduled I land without any interference from anyone. The defendant No. 1 (Promod Ch. Das), the predecessor in interest of the present appellants on the strength of a Registered Sale Deed dated 16.03.82 started creating disturbances in the peaceful possession of the plaintiff respondent over the land described in Schedule II of the plaint which is part of Schedule I land. The Schedule II land is the suit land. The said defendant No. 1 has no right, title and interest over the Schedule II land which he entered forcibly on 05.10.2002. On the basis of the said pleadings the plaintiff-respondent sought for the relief of permanent injunction restraining the defendant-appellant his agents etc., from interfering with the peaceful possession of the plaintiff-respondent over the Schedule II suit land which is about 4 bighas of land forming part of the land described in Schedule I of the plaint.
(3.) The defendant-appellant contested the suit by filing written statement raising the plea that the suit is not maintainable and the same is bad for non-joinder of necessary parties etc. It is the defence taken by the defendant-appellant that the plaintiff-respondent with malafide intention by giving a wrong description of the suit land tried to possess the land he purchased from the proforma defendant No. 1 (who is the brother of the plaintiff-respondent) by way of the Registered Sale Deed in two plots. In MR Case No. 207/96 under Section 145 Cr.P.C., against the plaintiff-respondent initiated by the defendant-appellant, the Executive Magistrate declared possession of the suit land in his favour and the subsequent revision petition filed before the learned Sessions Judge also upheld the same. So the defendant-appellant sought for dismissal of the suit.
On the basis of the pleadings of the parties the following issues were framed:-
1. Is there any cause of action for the Suit?
2. Is the suit maintainable in law?
3. Is the suit bad for non-joinder of necessary parties?
4. Whether the plaintiff is in possession of the suit schedule-II land?
5. Whether the plaintiff is entitled to decree as prayed for? ;
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