RSA 109/2002. Gauhati High Court
| Case Number | RSA 109/2002 |
| Judgement Date | January 24, 2021 |
| Court | Gauhati High Court |
I N THE GAUHATI HI GH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 109/ 2002
On the death of Prafulla Lahkar, his legal heirs
Smti. Arati Lahkar & others …… Appellants
- Versus -
On the death of Bipul Chandra Baruah, his legal heirs-
Sri Abhijit Baruah & another ..... Respondents
:: BEFORE ::
HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appellants : Mr. J Deka
Advocate
For the Respondents : Mr. BD Deka
Advocate
Date of Hearing : 24.01.2017
Date of delivery of
Judgment and Order : 24.01.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. J Deka, learned counsel appearing on behalf of the appellants and Mr. BD Deka, learned counsel appearing on behalf of the respondents.
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The respondents, as plaintiffs, instituted title suit No. 48/ 1991 against the defendant/ appellants praying for a decree of khas possession by evicting the defendant including the persons who are occupying the house under him (defendant/ appellant) and also by removing the thatched structures and Chalis
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and also for declaration of title. The case of the plaintiff/ respondents is that they are the owner and in possession of 2K 10L of land covered by Dag No. 482/ 483 of KP Patta No. 63 which is described in the Schedule A of the plaint. The said land was purchased by the deceased plaintiff Priyambada Baruah from one Kaliprasad Baruah and other co-owners by registered sale deed dated
27.02.1970 where-after possession was delivered to her. Her name was duly mutated vide order dated 06.01.1988 in Mutation Case No. 1160/ 1986-87. I mmediately after taking possession, the deceased plaintiff (the present respondents are her legal heirs) constructed a thatched house and allowed some labourers to stay there. But the suit land was lying vacant as those labourers left the place.
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During the last part of the year 1983 the defendant appellant started business of bamboo and tarja on the road side of the land of the PWD road abutted on the front side of the suit land by making a thatched chali. I n the year 1984, the defendant appellant occupied the thatched house of the plaintiff respondents and used the same for his business purpose. The defendant appellant also raised two other challis on the suit land and allowed to stay one dhobi and a cycle mechanic. The plaintiff respondents protested to such action of trespass whereupon the defendant appellant promised to vacate the suit land as soon as he could arrange other accommodation. The defendant appellant also told that as the authority concerned evicted them from the road side chali, so he had shifted his business to the thatched house and he had raised the chali for the dhobi and cycle mechanic as they too had no shelter. The defendant
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appellant also allowed three other outsiders to raise chali over the suit land. But the defendant appellant did not vacate the suit land as promised.
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I n 1988, the original deceased plaintiff came to know that the defendant appellant obtained the holding No. 543 of GMC in his name in respect of the said thatched house and challis. The plaintiff respondents raised objection before the GMC whereafter the GMC vide order dated 07.01.1989 corrected the entries and recorded the name of the deceased plaintiff. I n spite of repeated request and demand made by the plaintiff respondents, the defendant appellant and his men did not vacate the suit land. A notice through his counsel on behalf of the plaintiff respondents was also sent. I n spite of the receipt of the said notice, the defendant appellant failed to vacate the suit land which compelled the plaintiff to institute the suit.
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The defendant appellant has contested the suit by filing the written statement alleging that the suit land is ceiling surplus land and he has been residing over the suit land since 08.07.1970. In the year of 1977, the Public Health department (PHE) used to keep some iron pipe for about 1½ years. The Officer I n-charge under whom the said pipes were stored, asked the defendant appellant to start tea stall so that the staff engaged in the works could have their refreshment within a closed distance. The defendant appellant started the tea stall w.e.f. 15.04.1977.
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The plaintiff having come to know visited the spot and asked the Officer I n-charge to remove the pipes from the said land. The Officer I n-charge accompanied by the defendant appellant proceeded to the Office of the SDO and on verification came to know that the land was a ceiling surplus. After some time
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the iron pipes were shifted to respective places and the place was made vacant where-after the defendant appellant constructed two other houses and let out to other persons without any hindrance from any corner and he has acquired right over the suit land by way of adverse possession. The defendant appellant denied that the plaintiff respondents had possession over the suit land by constructing thatched house. Further it was pleaded that the holding No. 543 was allotted to him and he has been paying the municipal taxes also. The defendant appellant also took the plea that the suit was barred by limitation. Finally, he prayed for dismissal of the suit.
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Upon pleadings, the learned trial court of the then Civil Judge (Jr. Divn.) No. 2 framed the following issues:-
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Whether there is cause of action for the suit?
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Whether the plaintiff has right, title and interest over the suit land?
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Whether the suit is barred by limitation?
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Whether the suit is bad for non-joinder of necessary parties?
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Whether the plaintiff is entitled to the relief prayed in the suit and/or any other relief?
Additional Issues:-
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Whether the suit is maintainable in its present form?
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Whether the defendant has acquired any title over the suit land by right of adverse possession?
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Whether the suit is ceiling surplus land?
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Both the parties adduced evidence in support of their claim and the learned trial court after hearing the parties decreed the suit vide judgment and decree dated 10.03.2000 passed by the learned Civil Judge (Jr. Divn.) No. 2 at Guwahati in title suit No. 48/ 1991.
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The defendant appellant preferred title appeal No. 27/ 2000 in the court of learned Civil Judge (Sr. Divn.) No. 3, Kamrup at Guwahati challenging the
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judgment and decree dated 10.03.2000 passed by the learned Civil Judge (Jr. Divn.) No. 2, Guwahati. The learned first appellate court after hearing the parties dismissed the appeal vide judgment dated 24.01.2002.
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Being aggrieved, the defendant appellant preferred this second appeal against the said judgment and decree dated 24.01.2002 passed in title appeal No. 27/ 2000 by the learned Civil Judge (Sr. Divn.) No. 3, Kamrup at Guwahati. During the pendency of the present second appeal, the original defendant appellant Prafulla Lahkar died after which he was substituted by his legal heirs. Similarly, the respondent plaintiff No. 1, namely, Bipul Chandra Baruah died and was substituted by his legal heirs. This second appeal was admitted on
15.11.2002 on the following substantial questions of law: -1. Whether a decree can be passed for delivery of khas possession of the suit land without declaration of right, title and interest?
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Whether Issue No. 2, i.e., whether the respondents/ plaintiffs have right, title and interest over the suit land can be framed and...
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