The petitioner has filed this petition under section 115 read with section 151 of the Code of Civil Procedure and under Article 227 of the Constitution of India, challenging the order dated 25.3.86 passed by the Munsiff No. 1, Sibsagar in Misc. Case (J) No. 27 of 1981, arising out of Title Execution Case No. 2 of 1979, dismissing the application filed by the petitioner for restoration of possession and for compensation.

2. The petitioner's case is that the predecessor-in-interest of the respon­dent 1 (a) to 1 (e) instituted a suit (TS No. 16 of 1965) praying for a decree, inter alia, for recovery of khas possession of 18 lechas of land covered by Dag No. 45 (old) Periodic Patta No.209 (old) corresponding to new Dag No.55 of Simaluguri Town, Dhopabar Mouza, in the district of Sibsagar. In the plaint, however the boundary of the suit land was not shown. The suit was decreed. An appeal preferred by the defendants/petitioners, was also dismissed. Second appeal was filed which was also dismissed. The original plaintiff as well as the defendants died and the present petitioner and the defendant No. 1 (a) to l(e) were substituted in their places.

3. The petitioner's further case is that the land adjacent to the land included in Dag No.55 are covered by Dag No. 54 and Dag No. 203. The petitioners and other members of their family had been using the said land since long time. This land was used by the members of the family of the petitioner as a path-way to their residences. As a matter of fact, this land was the only land over which the ingress and egress was possible.

4. After obtaining the decree, the decree-holder filed an execution case (T. Ex. Case No.2 of 1979) to execute the decree. The petitioner further stated that, meanwhile, an acquisition proceeding (LA Case No. 22/80-81/NEC) was also initiated for acquisition of land covered by the said Dag No. 55 and during the course of said execution proceeding, an area of land measuring 7 lechas under Dag No. 55 was taken possession. Thus the said land in the said Dag No.55 was reduced to the extent it was taken over in the said acquisition proceeding. On 10th March, 1981, an area of land measuring 13 lechas covered by Dag No.54 and 203 was taken in possession in execution of the said decree, even though the decretal land is only under Dag No. 55. The petitioner is the owner of the lands under the said Dags.

5. Thereafter, the petitioner filed a petition under section 47 of Code of Civil Procedure, stating, inter alia, that the executing Court on 29.9.80 issued a writ for delivery of possession in execution of the decree by demolishing the houses standing thereon with the help of Lot Mandal, Supervisor Kanungoo and Armed police, but the Nazir could not execute the writ as the Lot Mandal could not point out the actual decretal land. However, the decree was executed on 10.3.81 with the help of Lot Mandal, Supervisor Kanungoo and Armed police and the plot was delivered to the decree-holder. While executing the decree the Nazir took possession of a portion of land included in Dag No. 54 as well as in Dag No.203, demolishing the houses of the judgment-debtor standing on the said land, and, therefore, he prayed for restoration of possessi­on of land which was not covered by decree and for compensation of Rs. 9,950/- for illegal demolition of the house belonged to the petitioner. This petition was registered as Misc. (J) Case No.27 of 1981.

6. The petitioner examined, as many as three witnesses, viz. Md Babul Ali. Amar Bodh and Madhab Ch. Gope and the opposite party also examined two witnesses, viz., Jogendra Nath Konwar and Chandreswar Gohain. Sri Punaram Dutta, Supervisor Kanungoo was examined as a Court witness. After recording the evidence and on hearing the parties, the Munsiff by his order dated 25.3.86 dismissed the petition rejecting the prayer of the petitioner. While rejecting the prayer the Munsiff observed that Sri Punaram Dutta, Supervisor Kanungoo was appointed Survey Commissioner.

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