Decided on January 24,2018

Putali Singh Appellant
Joy Madhab Baruah Respondents


PRASANTA KUMAR DEKA - (1.) Heard Mr.G.N.Sahewalla, learned Senior Counsel assisted by Ms.B.Sarma, leaned counsel appearing for the appellants. Also heard Mr.B.Banerjee, learned Senior Counsel assisted by Mr.D.N.Bhattacharyya appearing on behalf of the respondent.
(2.) The appellants herein are the defendants in Title Suit No. 46/1989 in the Court of learned Munsiff No. 1, Sivasagar which was preferred originally by Sri Satya Borua as plaintiff and on his death substituted by his son Joy Madhab Borua, the present main respondent No. 1. It is the case of the plaintiff respondent that Satya Barua alongwith one Lakhinath Bezborua purchased land measuring 2 Bighas 2 Lechas which includes the suit land the total land being described in schedule A of the plaint. The said land was purchased jointly by way of a registered sale deed dated 1.5.1951 and the schedule of the land shown to be purchased was corrected by way of rectification deed No. 201/1955. The original land described in schedule A covered total land measuring 2 bighas 2 lechas which belongs to M/s Phulchand Agarwalla. Later on, it devolved on Bhagwandas Agarwalla and after the purchase of the said land the same was partitioned between the two purchasers i.e. Satya Barua and Lakhinath Bezbarua and separate pattas were issued to the said purchasers. The suit land described in schedule- B is the land under the share of Satya Barua. The portion of 'B' schedule land was leased out to one Jatin Singh by the original owner in the year 1946 and he continued his possession in that portion out of the total land till the date of purchase by Satya Barua and Sri Lakhinath Bezbarua. At the time of such purchase, a thatched house was standing thereon of Jatin Singh who was a tenant of Bhagawan das Agarwalla, the vendor of Satya Barua and Lakhinath Bezbarua. After purchase of the suit land as per request of Jatin Singh, Satya Barua, the plaintiff allowed him to stay there as the plaintiff has his own residence at Betbari. There was a cordial relationship between the two and the plaintiff entrusted Jatin Singh to look after his entire land as a custodian. Jatin Singh also took responsibility for looking after the entire land and discharging the responsibility till his death in October, 1986, though he could not pay rent from February, 1985 due to illness. After the death of Jatin Singh the defendants/ appellants used to live in the said house but they did not pay the rent inspite of requests made by the plaintiff/respondent. Though Jatin Singh originally constructed a temporary thatched house, later on some goomti houses were constructed blocking the front portion of the said land and blocked the entry towards the back side land without permission of the plaintiff respondent. The said defendants appellants also inducted tenants who are made parties to the suit. The plaintiff respondent requires the suit land for his own use and occupation and as such the plaintiff respondent asked the defendants appellants to vacate the land by removing the unauthorised construction and to deliver the possession of the entire land and house. The plaintiff respondent issued legal notices to the defendants appellants through his counsel on 3.4.1989 and 22.6.1989 but on receiving the same defendants appellants denied the relationship of landlord and tenant and refused to vacate the suit land. Hence the suit was filed for recovery of khas possession by evicting the defendants appellants, for arrear and future rents till the actual delivery of land. The plaint was amended by introducing the pleading that a proposal was placed by defendants/appellants to exchange land belonging to them and allow the defendants appellants to reside over the suit land.
(3.) The defendants appellants contested the suit by filing written statement pleading the regular pleas like non-maintainability of the suit, bad for non-joinder of necessary party, barred by limitation etc. The defendants appellants admitted that 'A' schedule land originally belonged to M/s Phulchand Agarwalla Firm but disputed the fact that the same devolved on Bhagawandas Agarwalla. As per written statement Bhagawandas Agarwalla was not owner of schedule land of the plaint and as such he had no title to transfer the suit land. The defendants appellants had no knowledge that the plaintiff Satya Barua, purchased the said land jointly and separate patta was issued to the said plaintiff, Satya Barua . It is the plea of the defendants appellants that late Nandi Singh, their predecessor-in-interest entered into the suit land in the year 1940 and started to live there. After his death, late Jatin Singh and thereafter the defendant appellants have been possessing the said land and their possession all along was hostile against the actual owner for about 50 years and they acquired right, title and ownership over the suit land by virtue of their long, open and hostile possession against the actual owner. They denied the relationship of landlord tenant between the plaintiff and Jatin Singh. Accordingly they sought for dismissal of the suit.;

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