ARUN CH BAISHYA Vs. KARMA RAM BAISHYA HIS LEGAL HEIRS MOINA BAISHYA

JUDGEMENT

(1.) Heard Mr T.C. Khetri, learned counsel for the appellant and Mr K.K. Mahanta, learned counsel for the respondents.

(2.) In this second appeal arising out of the judgment and decree dated 22.8.1994 passed by the Assistant District Judge, Sonitpur, Tezpur in Title Appeal No. 20/1993, the following substantial questions of law were formulated:-

(3.) The facts, in brief, are that the appellant as plaintiff filed Title Suit No. 86/88 stating inter-alia that the land described in Schedule-A to the plaint belonged to the father of the plaintiff and defendants and thereafter, there has been an amicable settlement amongst the three brothers of which they were given one third share, that is, 11 lechas of land as described in Schedule-B to the plaint and hereinafter referred as the suit land. The settlement was arrived at in the year 1984, that is, 22.12.84. On 7.11.85 the Municipal Board restrained the parties from raising any construction. The case of the plaintiff is that on 13.11.88 the defendant demolished the latrine situated over the suit land which led to the filing of first information report at the Police Station. The plaintiff prayed for declaration of right and interest based on his possessory title and prohibitory injunction. Defendant No. 2 Sri Dharma Ram Baishya filed written statement admitting the broad facts of the case and stating that he is no way involved with the suit land. The contesting respondent defendant No. 1 also admitted (the statement of 1984 and the fact that 11 lechas of land fell into his share. Restraint by Municipal Board from raising any construction was also no disputed. However, the respondent defendant Karma Ram Baishya denied the allegation of demolition. The trial Court framed as many as six issues which are quoted below:-