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2015 Supreme(Gau) 404
IN THE HIGH COURT OF GAUHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
A.K. GOSWAMI, J.
Sukumar Namasudra & Ors. - Appellants/Defendant Nos. 2 and 3
Versus
Bhojan Namasudra & Ors. - Respondents/Plaintiffs
RSA No. 156/2004
Decided On : 19.6.2015
Advocate Appeared:
For the Appellants :Ms. R. Choudhury, Advocate.
For the Respondents:Mr. N. Dhar, Advocate.
Headnote:
Evidence Act, 1872 - Section 92 – Convenient - land with an intention to dispossess - Registered sale deed - Decreeing suit - Case of plaintiff as projected in plaint in short is wife sold 1st schedule and 3rd schedule lands to father of plaintiff and husband of plaintiff namely by registered sale deed which was exhibited - It is pleaded that in northern part of land excavated a tank - schedule land refers to kedar of land equivalent to decimals which was purchased by schedule is part of schedule land which is a kind of a tank and fishery measuring about - decimal - schedule is orchard land measuring - It is alleged that defendants who are neighbors of plaintiffs are causing interference with their peaceful possession in respect of schedule land with an intention to dispossess them there from - Held, It is relevant to note that plot in sale deed corresponds to schedule of suit land exactly so far as boundaries are concerned - Schedule is referred to as part of Dag - Trial court on perusal of final recorded finding that Dag are recorded as bank of pond respectively - It had also been recorded by trial court that in his evidence had stated that he does not know in which dag suit land falls and in absence of any explanation trial court held that there is no evidence on record to hold that suit land falls in Dag - Obviously said finding is related to schedule had testified that there was a very old pond plaintiffs never possessed and enjoyed tank and that plaintiffs had land on southern side of bank of tank - Appeal Allowed
Heard Ms. R. Choudhury, learned counsel for the appellants/defendants. Also heard Mr. N. Dhar, learned counsel appearing for the respondents/plaintiffs.
2. This appeal is directed against the judgment and decree dated 30.4.2004 passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 47/2002 allowing the appeal by setting aside the judgment and decree dated 13.5.2002 passed by the learned Civil Judge (Junior Division), Karimganj in Title Suit No. 74/1993 decreeing the suit.
3. The case of the plaintiff as projected in the plaint, in short, is that Abalabala Namasudra, wife of Piariram Namusudra sold 1st schedule and 3rd schedule lands to the father of plaintiff Nos. 1, 2 and 3 and husband of plaintiff No. 4, namely, Pulin Namasudra by registered sale deed dated 31.1.1973, which was exhibited as Ext. 3. It is pleaded that in the northern part of the land, Pulin Namasudra excavated a tank. 1st schedule land refers to 1 kedar of land, equivalent to .30 decimals, which was purchased by Pulin Namasudra. 2nd schedule is part of 1st schedule land which is a kind of a tank and fishery measuring about .15 decimal. 3rd schedule is orchard land measuring 1 poa. It is alleged that the defendants who are neighbours of the plaintiffs are causing interference with their peaceful possession in respect of 2nd and 3rd schedule land with an intention to dispossess them therefrom.
4. At the outset, it will be convenient to reproduce the three schedules for better appreciation:
“1st Schedule
All these pieces and parcels of land covered by settlement surveyed dag No. 493 (added Dag No. 494 & 498) of Mouza Kamargram Part-2, in parganah Egarasati in the district of Karimganj.
East – Chara land of Debendra Namasudra.
West – Chara land of Rajendra Namasudra.
North – Tank of Jageswar Namasudra.
South – Dhanakhal’s Patit land.
Within this boundary an area of one kedar i.e. 30 decimal of land.
2nd Schedule
Northern half of the above stated 1st, schedule land.
East – Chara land of Debendra Namasudra.
West – Chara land of Rajendra Namasudra.
North – Tank of Jogeswar Namasudra.
South – Chara land of the plaintiff i.e. the remaining half of the 1st schedule land.
Within this tank and fishery type measuring .15 decimals.
3rd Schedule
Land covered by Dag No. 492 of Mouja Kamargram Part-2 in pargana Egarasati:
East – Tank of Jageswar Namasudra.
West – Homestead of late Surjaram Namasudra.
North – Patit land.
South – Homestead of Rajendra Namasudra.
Within this orchard land measuring one poa only.”
5. Initially, in respect of 1st schedule, Dag number was referred to as 493. Subsequently, by way of amendment, Dag Nos. 498 and 494 are added and word “Patit land” was added after the word “Dhanakhal” in southern boundary of 1st schedule.
6. The defendant No. 2 is an adopted son of defendant No. 1 and the written statement was filed on behalf of defendant Nos. 2 and 3. It is averred that the plaintiffs had no title and possession in respect of Dag No. 493 and the land of 1st and 2nd schedule is not related to the land of Dag No. 493 and Dag No. 493 was not sold by Abalabala Namasudra to Pulin Namasudra. Digging of pond was also denied. It is stated that Piariram Namasudra had a pond measuring 1 kedar 3 poa 3 jasti 2 rake appertaining to Dag No. 493/494 and he had sold 1 kedar of the northern side of the pond to Jogeswar Biswas vide a registered sale deed dated 7.6.1954 and Jogeswar Biswas, in turn, vide registered sale deed dated 11.3.1977, sold the land to defendant Nos. 2 and 3 and one Sajal Namasudra who died unmarried. Abalabala had also executed a sale deed dated 5.1.1976 which was registered on 6.1.1976 in respect of land measuring 3 poa 3 jasti 8 pon. It is stated that there is no pond on the settlement Dag No. 493 and entirely on the basis of false statement, suit was instituted against the defendants. It is also averred that they were in possession of Dag No. 493 and 494 during the last Government survey and they have been is
