CHONGTHAM ONGBI KALPALATA DEVI Vs. DR. NINGTHOUJAM BIRACHANDRA SINGH

JUDGEMENT

(1.) Since both the applications do arise out of the common order dated 30.11.2015 passed in J.M. Case No. 192 of 2015 and J.M. Case No. 193 of 2015 (arising out of OS No. 5 of 2015) whereby and where under prayer of the petitioners/applicants for impleadment as party defendants was rejected, both were heard together and are being disposed of by the common order.

(2.) From the pleadings of the parties, the facts giving rise to these applications are that one late B. Ibungochaoba Sharma was the original owner/Pattadar of the homestead land appertaining to patta No. 353 (old) situated in the village No. 38, Wangkhei Paschim Brahmapur. The said B. Ibungochaoba Sharma (grandfather of the applicants/petitioners and also of the proforma respondents No. 2, 3 and 4) sold a piece of land measuring 0.1967 acre vide registered sale deed to one Ningthoujam Gopal Singh (deceased), but in the record of rights, it was recorded as 0.21 acre which was excess by 0.0133 acre. Said B. Ibungochouba Sharma died in Aug., 1973 leaving behind his son B. Nimai Sharma (father of the proforma respondents No. 2, 3 and 4 and the applicants/petitioners) who inherited the homestead land recorded in the name of his father. Later on, the said land was recorded in the name of said Nimai Sharma, who during his lifetime, sold two different portions of land measuring 0.0086 acre and 0.0422 acre in the year 1974. Subsequently, said Nimai Sharma sold a portion of land measuring 0.1062 acre (77 ft x 60 ft) out of the remaining homestead land to N. Birchandra Singh (principal respondent), vide registered sale deed in the year 1982. By the said sale deed the vendor permitted the purchaser to use the land measuring 3 feet in width touching the southern boundary of his land as path. Said Nimai Sharma died on 13.06.1998 leaving behind his widow, 3 sons (proforma respondents No. 2, 3 and 4) and 6 daughters (petitioners/applicants) as Class-I heirs. After the death of the widow of said Nimai Sharma, the homestead land measuring about 0.3563 acres devolved upon the petitioners and proforma respondents No. 2, 3 and 4 in equal shares. On 13.06.2015, the petitioners/applicants approached to proforma respondents No. 2, 3 and 4 and expressed their desires to have partition of the said homestead land among the co-sharers. Upon it, the proforma respondents No. 2, 3 and 4 conveyed the petitioners that it is not possible to do so as 2 (two) cases, one brought by them against the respondent Birchandra Singh and other case filed by Birachandra Singh against the proforma respondents are pending before the Civil Court. It was also disclosed by the proforma respondents that they have brought a suit against Birachandra Singh (principal respondent) and his brothers and sister for evicting them from the portion of the homestead land whereas said N. Birachandra Singh (principal respondent) has filed a suit being Original (Injunction) Suit No. 5 of 2015 for permanent injunction against the proforma respondents claiming approach road as common pathway.

(3.) The case which has been made out by the said Birchandra Singh (plaintiff/respondent) is that on 26.11.1982, he had purchased a piece of land (77ft x 60 ft) appertaining to patta No. 38(old)/353/241 of Dag No. 304 from Nimai Sharma (father of the defendants-proforma respondents) under a registered sale deed. However, Nimai Sharma (father of the defendants) permitted him to use common passage (172 ft x 6 ft) for egress and ingress. Since then, the plaintiffs were enjoying the right of the way openly and peacefully without any interruption and interference from the defendants. Subsequently, on 14.10.2004, it was agreed upon between the plaintiff and the defendants to legalise the said transaction made orally so that there may not be any problem in future. Therefore, they submitted an application before the SDC, Settlement Office, upon which a case was registered as Revenue Misc. Case No. 24/AS&/SO/Imp-III which was disposed of by allowing the joint prayer for issuance of separate patta for the said piece of land measuring 172 ft x 6 ft. Accordingly, on the basis of the said order, a separate Jamabandi was created under patta no. 353/291(A)(New) under dag No. 304(A) measuring an area of .0237 acre (172 ft x6 ft). Suddenly, the plaintiff (respondent) received a summon on 12.03.2014, issued in connection with O.S. No. 13 of 2014, brought against him and others for evicting them from the said piece of land which was recorded in the name of the plaintiff pursuant to order passed by SDC, and also for grant of permanent injunction, restraining the plaintiff from using the said common approach road measuring .0237 acres.