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2014 DIGILAW 745 (GAU)

Akbar Ali and Ors. v. Musstt. Asma begum @ Lali Begum

2014-07-30

N.CHAUDHURY

body2014
1. Heard Mr. D. Chakraborty, learned counsel for, the appellants. 2. The second appeal has been preferred against the concurrent findings of the courts below in regard to Title Suit No. 5 of 2010. The suit of the plaintiff was declared by the learned Munsiff No.1, Dhemaji on 27.2.2012 against which the present appellants preferred Title Appeal No.1 of 2012 in the court of learned District Judge at Dhemaji and the said appeal has also been dismissed on 13.9.2013. 3. This second appeal has been preferred against the judgment and decrees passed in the aforesaid cases. 4. Respondent No.1, Musstt. Asma Begum as plaintiff instituted Title Suit No.5 of 2010 in the Court of learned Munsiff No.1, Dhemaji stating that her husband Rafik Ali was in possession of the suit land measuring 85 lechas covered by annual patta Dag No.2 in Mouza-Chichi in the district of Dhemaji. According to the plaintiff Annual Patta was issued in the name of Rafik Ali and he had been paying land revenue to the Government against possession and enjoyment of the suit land. 5. On 25.12.2007 father of Rafik Ali, i.e., Rouj Ali had expired and Rafik Ali had predeceased his father. Taking opportunity of death of Rafik Ali and his father, the defendants started threatening the plaintiff for grabbing the land. The defendants did so expressing their intention to sell the suit land to defendant Nos. 4 and 5. Under such circumstances plaintiff was compelled to lodge an FIR against the defendants on 3.3.2008 with the Chichiborgaon Police Outpost. But even thereafter on 16.6.2008 at about 12 noon the defendants trespassed into the land and dispossessed the plaintiff forcibly. Compelled, plaintiff lodged another ejahar against them at Silapathar Police Outpost leading to registration of case under section 145/107 of the Code of Criminal Procedure before the learned Executive Magistrate, Dhemaji. But as no headway could be made in that proceeding, the plaintiff asked for appropriate order from the Executive Magistrate on 1.2.2009. While the aforesaid case was pending before the learned Executive Magistrate, the defendant Nos. 1 and 2 with the help of other defendants divided the land among themselves forcibly and constructed a house thereon under I.A.Y Scheme. But as no headway could be made in that proceeding, the plaintiff asked for appropriate order from the Executive Magistrate on 1.2.2009. While the aforesaid case was pending before the learned Executive Magistrate, the defendant Nos. 1 and 2 with the help of other defendants divided the land among themselves forcibly and constructed a house thereon under I.A.Y Scheme. Being frustrated due to delay in disposal of the proceeding under section 145/107, Cr.PC the plaintiff, thereafter filed suit praying for declaration of right, title and interest over the suit land and recovery of possession by evicting defendant Nos. 2 and 3 who in the meantime have been possessing the same suit land. The plaintiff also prayed for consequential relief in the form of injunction and compensation. 6. On being summoned, the defendant Nos. 1 to 7 appeared and submitted their joint written statements. Defendants, however, apart from denying the plea taken by the plaintiff could not raise any claim on title over the land in question. On the basis of the rival contention of the parties, the learned trial court framed as many as six issues which are quoted below: (i) Whether the suit is maintainable in law and in facts including the point of limitation? (ii) Whether there is cause of action for the suit? (iii) Whether the plaintiff has right, title and interest over the suit land? (iv) Whether the defendants dispossessed the plaintiff from the suit land illegally? (v) Whether the plaintiff is entitled to the reliefs claimed for? (vi) To what relief/s the parties are entitled to? 7. Plaintiff adduced three witnesses in her favour including herself as PW-3 and exhibited Exhibit-1 to (gha). Defendants on the other hand examined five witnesses. After hearing both the sides, the learned trial court by judgment and decree dated 27.2.2012 decreed the suit declaring that plaintiff has better right to possess entire suit land measuring 85 lechas and that she is entitled to recover possession of 70 lechas of the suit land from the possession of the defendant Nos. 1,2 and 3 by evicting them. The suit having been decreed in entirety, defendants of Title Appeal No. 1 of 2012 in the court of learned District Judge, Dhemaji. The learned first appellate court on perusal of the materials available on record after hearing both the sides dismissed the appeal by judgment and decree dated 13.9.2013. 1,2 and 3 by evicting them. The suit having been decreed in entirety, defendants of Title Appeal No. 1 of 2012 in the court of learned District Judge, Dhemaji. The learned first appellate court on perusal of the materials available on record after hearing both the sides dismissed the appeal by judgment and decree dated 13.9.2013. The learned first appellate court also upheld the view taken by the learned trial court that the suit land is an Annual Patta land covered by Dag No.2 of Gelua Asomiya Gaon. By relying on the records of rights, the learned courts below arrived at the findings that the Annual Patta land was settled in favour of Rafik Ali, the husband of the plaintiff. 8. Relying on the oral evidence of the independent witnesses the learned court found that the predecessor of the plaintiff had been possessing the land till her dis-possession. Independent witnesses also proved that defendants dis-possessed the plaintiff on the day of cause of action. Having so found, the learned first appellate court upheld the findings of the learned trial court in regard to initial possession of the plaintiff and subsequent dispossession by the defendants. 9. Mr. D. Chakraborty, learned counsel for the appellants submitted that since it is a case of dis-possession, plaintiff ought to have instituted suit within a period of six months from the date of alleged dis-possession but in the case in hand, the plaintiff went on pursuing her remedy before the learned Executive Magistrate and after inordinate delay filed the suit in the year 2010. The alleged date of dis-possession was 16.6.2008 whereas the suit was instituted on 3.8.2010. It is not a suit under section 6 of the Specific Relief Act. The plaintiff has made prayer for declaration of right, title and interest over the plot of land on the basis of Annual patta and has adduced evidence in support of her case. This is a regular title suit for declaration and injunction. In that view of the matter limitation period as prescribed under section 6 of the Specific Relief Act does not apply to the present suit. This being the position I do not feel that any substantial question of law arises in the present appeal. 10. Accordingly, the second appeal is not admitted and it is dismissed. 11. No order as to costs.