PRASANTA KUMAR DEKA, J. - (1.) Heard Mr. M. Khataniar, the learned counsel for the appellant. Also heard Mr. S. K. Ghosh, the learned counsel for the respondent.
(2.) The present respondent filed Title Suit No.02/2004 against amongst others the present defendant/appellant as the defendant No.1 for declaration of his right, title and interest, recovery of possession and mesne profits in respect of the suit land. The suit land is more or less 5 Bighas 2 Kathas 6 Lechas under Khatian No.9 Periodic Patta No.51 Dag No. 97 (old)/ 15/351 (new) etc. of village- Allibari under Rangjuli Circle in the district of Goalpara originally belonged to one, Junus Munda. The plaintiff/respondent purchased the suit land alongwith other lands from the said owner Junus Munda by way of three registered sale deeds. The possession of the total land including the suit land measuring 5 Bighas 2 Kathas 6 Lechas was delivered by Junus Munda and on the basis of the said sale and possession name of the plaintiff/respondent was recorded in the records of right. The defendant/appellant is related to Junus Munda and on his death as per the pleading in the plaint, he refused to recognize the plaintiff/respondent as the owner of the suit land. On 02.04.2003 the defendants including the present defendant/appellant trespassed in the suit land and started cultivation by force. The suit land is a fertile one yielding substantial amount of paddy both "Sali" and "Ahu" as such, the plaintiff/respondent sought for declaration of his right, title, interest and recovery of possession alongwith mesne profits.
(3.) The defendant/appellant alongwith the other defendants though filed a joint written statement, however, the stand therein was specific that except the defendant/ appellant the rest of the defendants had no interest over the suit land. The defendant/ appellant alongwith the written statement also filed his counterclaim seeking for a declaration that he is non occupancy tenant in respect of the suit land under the landlord plaintiff/respondent. Admitting the ownership with Junus Munda of the suit land it is the pleading in the written statement-cum- counterclaim that the suit land was under his possession for the past 15 years and he was the "Adhiar" of Junus Munda in the year 2002. The plaintiff/respondent produced three sale deeds in order to prove his ownership over the land including the suit land whereafter he was permitted to cultivate over the land as the "Adhiar" under the plaintiff/respondent. He used to deliver 9 mesne of paddy to Junus Munda as rent for every year but the plaintiff/respondent demanded half of the produce of the crops from the suit land though the defendant/appellant offered him 9 mounds of paddy as the rent. He also attorned the plaintiff/respondent as landlord and denied that he alongwith the other defendants trespassed into the suit land. Accordingly, further denying the fertility of the land and the crops yield as pleaded in the plaint, the defendant/appellant sought for the dismissal of the suit declaring his status as non-occupancy tenant over the suit land under the plaintiff/respondent. On the basis of the pleadings, the learned trial court framed the following issues:- "1) Whether there is cause of action for the suit? 2) Whether the suit is maintainable in the present form? 3) Whether the suit is bad for non-joinder of all the khatiandars of khatian No.9 as referred to in plaint? 4) Whether the plaintiff has right, title or interest on the suit land? 5) Whether defendant dispossessed the plaintiff on 2.04.03? 6) Whether the plaintiff is entitled to a decree of mesne profits @ Rs.10,000/- (Rupees ten thousand only) per year from 2004 till recovery of the possession? 7) Whether there is any cause of action for the counter claim for the defendant? 8) Whether defendant No.1 is a tenant under the plaintiff under the provision of The Assam (Temporarily Settled Areas) Tenancy Act? 9) To what relief/reliefs, if any, the parties are entitled?" ;