B.P. Katakey

1. This appeal by the plaintiffs is directed against the judgment and decree dated 24th May, 2001 passed by the learned Civil Judge (Senior Division), Morigaon in Title Appeal No. 21/1999 allowing the appeal preferred by the defendants by setting aside the judgment and decree dated 13th October, 1999 (decree drawn on 14th October, 1999) passed by the learned Civil Judge (Junior Division) No. 1, Morigaon (now Munsiff), in Title Suit No. 5/1994, Whereby and whereunder the plaintiffs' suit was decreed. The appellants as plaintiffs instituted Title Suit No. 5/1994 in the Court of the learned Civil Judge (Junior Division) No. 1, Morigaon against the present respondent Nos. 1, 3, 4 and the predecessor-in-interest of the present respondent Nos. 2(1) to 2(6), namely Baneswar Bordoloi @ Kaneswar, for declaration of right, title and interest in respect of the land measuring 7 bighas 8 katha 5 lechas comprising in 2 (two) dags, i.e. 1 bigha 8 katha 3 lechas in dag No. 330 and 6 bighas 0 katha 2 lechas in dag No. 331, covered by Period Patta No. 72(new)/36(old) relating to the survey for the period 1967-68/1971-72 of Kahuaati Kissan, Silpukhuri mouza in the district of Morigaon, described in the schedule to the plaint, contending inter alia that after the death of the original owner, Ghsruka Koch, the said land devolved on the plaintiff Nos. 1 and 2, being the daughter and son, and accordingly they became the owners by right of inheritance. It has also been pleaded that the defendant No. 1 on 15th January. 1990 got the Chitha mutation in respect of the said land, which, however, on being objected to was subsequently cancelled. The plaintiffs further pleaded in the plaint that on 20th December, 1990 there was an initial attempt made for dispossession by the defendants and ultimately they were dispossessed by the defendants from the suit land. The plaintiffs, therefore, filed the suit for declaration of right, title and interest in respect of the schedule land and also for recovery of khas possession.

2. The defendants contested the said suit by filing joint written statement contending that the defendant No. 1 on 23rd September, 1959 (Exhibit-Kha/Ga) and 79th February, 1960 (Exhibit Gha) purchased 2 bighas and 1 bigha 1 katha of land, respectively, from the predecessor-in-inter-est of the plaintiffs, Ghetuka Koch, by registered deeds of sale and accordingly, the defendant No. 1 became the owner in respect of the said land measuring 3 bighas 1 katha, which is part of the suit land. It has also been contended that the defendant No. 2 became the owner in respect of 2 bighas 2 kathas 10 lechas of land because of the mortgage by conditional sale executed by Ghetuka Koch, the predecessor-in- interest of the plaintiffs on 25th February, 1953 (Exhibit-Ka). The further contention of the defendants is that the defendant No. 4 acquired right, title and interest in respect of 1 bigha 1 katha 15 lechas of land, out of the suit land, because of the verbal transfer of the said land by Ghetuka Koch in favour of the defendant No. 4's father in the year 1960. The defendants, therefore, pleaded that since the predecessor-in-interest of the plaintiffs transferred the right, title and interest in respect of the entire suit land measuring 7 bighas 8 katha 5 lechas, the plaintiffs have no right, title and interest over the suit land. The defendants have also pleaded that their right over the suit land has been perfected by adverse possession as they are possessing the same for more than 35/40 years.

3. The Trial Court on the basis of the pleadings of the parties framed the following issues for determination :--

(1) Whether there is any cause of action for the suit?

(2) Whether the suit is maintainable in its present form?

(3) Whether the suit is barred by limitation?

(4) Whether the suit is barred by law of adverse possession?

(5) Whether the plaintiffs have any right, title and interest over S/L.

(6) Whether the Defendants acquired any right, title