Hon'ble Mrs. Justice Anima Hazarika

1. The legality and validity of the judgment dated 18.07.05 passed by the learned Judge, District Council Court, Khasi Hills, Shillong in Title Civil Appeal No. 2 of 2004 (in short TCA No. 2/2004) affirming the judgment and decree dated 16.07.04 passed in Title Suit No. 2 of 1989 (in short T.S. No. 2 of 1989) by the Presiding Officer, Subordinate District Council Court, Shillong have been called in question invoking power under Order 6 of the Assam High Court (Jurisdiction over District Council Courts) Order 1954 before this Court under revisional jurisdiction.

2. Heard Mr. S Sen, learned counsel appearing for the petitioner. Also heard, Mr. C H Mawlang learned counsel for the respondents.

3. The pleaded facts of the contesting parties are summarized here in below in a nutshell-

The respondents herein as plaintiffs brought a suit being T.S. No. 2 of 1989 against the petitioner herein who has been arrayed as defendant in the suit before the learned Judge, District Council Court, Khasi Hills District Council, Shillong seeking the following reliefs:

a) For declaration of the right, title, interest and possession of the plaintiff No. 1 over the suit property as the Khadduh of the family;

b) For eviction of the defendant or any person or persons claiming for or on his behalf or through him, from the suit property;

c) For permanent injunction against the defendant or any one claiming for or on his behalf or through him;

d) For full costs of the suit;

e) For any other relief/reliefs which the plaintiffs are entitle to according to law and equity.

4. The averments made in the plaint is that the plaintiff No. 1 is the only daughter of late Ka Sorsimai Kurbah who was the youngest daughter of late Ka Shilak Kurbah. Plaintiff No.1 is, therefore, according to custom, the Khadduh (youngest) of the womb of the said late Ka Shilak Kurbah and hence is the legal and successor of all properties left behind by late Ka Shilak Kurbah and Ka Sorsimai Kurbah. The plaintiff No. 2 is the eldest daughter of the plaintiff No. 1 and the defendant is the eldest brother of the plaintiff No. 1 and uncle of the plaintiff No. 2.

It has further been averred that late Ka Shilak Kurbah, grandmother of the plaintiff No. 1 was the owner and in possession of a land and house situated at Marbisu village, Marbisu Sirdarship which land and house is bounded as follows:

North: New PWD Road

East: PWD (Shillong -Mawphlang)

South: Mainly compound of Ka Niastimai Kurbah

West: Land of U Bernard Kurbah (previously land of Ka Kein Kurbah)

On the death of Ka Shilak Kurbah, the said property was inherited by her youngest daughter Ka Sorsimai Kurbah, mother of the plaintiff No. 1, who owned and possessed the same till her death and consequently thereupon the property devolves on plaintiff No. 1

It has also been averred that the mother of the plaintiff No. 1 was doing business and used to stay at Shillong as well as in her said house at Marbisu, however, the defendant No. 1 after his marriage with late Ka Bity Rani, left his mother's house as per custom and stayed with his wife at Mawphland. Since he had no house of his own, the mother of the plaintiff No. 1 allowed him to bring his wife to her house and lived there with his children. This was done out of pity as well as to look after the suit property in absence of mother and the defendant lived there happily and the relation was cordial. But in the year 1973 the plaintiff No. 1 constructed a shop house in the suit land and rented out the same but in the year 1988 the plaintiff No. 2 opened a wine shop in a portion of the said house under the name and style "ROVIJAKYSU" and another portion is let out for a restaurant. The plaintiffs after construction of the shop house wanted to have separate electrical connection to their shop houses but on 06.11.88 when the electricians of Me.SEB came to make separate connection, the defendant threatened them and openly claimed that the plaintiffs have no right on the