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2014 Supreme(Gau) 998
Gauhati High Court
P.K. Saikia, J.
Abed Ali and Ors. - Appellant
Versus
Uzir Ali - Respondent
RSA No.169 of 2008
Decided On : 23-09-2014
For the Appellants : Mr. A.M. Bujarbaruah and Dr. B. Ahmed.
For the Respondent: Mr. M. U. Ahmed.
Headnote:
Code of Civil Procedure, 1908 - Order 26, Rule 9 - Suit decree -Land case - It is alleged that the land in Schedule A was originally purchased by one - Thereafter, the plaintiff purchased such land on the strength of sale deed and came to occupy such land. In due course, his name was mutated in the relevant records of right - Held, In Courts instant case, Court have already found that in conducting the survey under consideration, Amin Commissioner did not offend basic procedures dealing with survey of the suit land and as such, the report of Amin Commissioner does not suffer from any infirmity whatsoever which unmistakably shows this second appeal lacks merit - But then, even if one assumes for the sake of argument that it is probable that the report of the Amin Commissioner became defective for the Commissioners not conducting the survey in question from the permanent station but from the rim of the road, yet then, on facts on record, this court in second appeal, cannot reverse the concurrent finding of the courts below on holding that a view other than one, arrived at by the courts, below, is also probable - In view of what Court have discussed herein before and what have emerged therefrom, Court have answered the additional question of law in favour of respondent/plaintiff - Appeal dismissed.
2. This second appeal was admitted for decision on the following questions of law :
"1. Whether the learned courts below committed an error in decreeing and affirming the decree of delivery of khas possession of the suit land to the plaintiff in excess of the plaintiffs claim viz., 1B, 13L in place of 1K, 13 L?
2. Whether the findings of both the courts below that the suit land is included in the plaintiffs patta is a finding based on no evidence"?
3. The brief facts necessary for disposal of the present appeal are that 3 plots of land measuring (a) 0B-2K-0Ls, (b) 0B-3K-8Ls and (c) 0B-lK-5Ls are the suit lands. While the land in SI. No. (a) is covered by Dag No. 986 in Patta No. 160, the land in SI. No.(b) is covered by Dag No. 988, KP Patta No. 73. On the other hand, the land in SI. No. (c) is covered by Dag No. 988 of KP No. 73. Such lands are situated at Howly town, Mouza - Ghilazari in the District of Barpeta. The land in SI. Nos. (a), (b) and (c) are described, more accurately in Schedules A, B, and C to the plaint, respectively.
4. Plaintiff in T.S. No. 87/2005 is the respondent in the present appeal. On the other hand, appellants herein are defendants in aforesaid Title Suit. For convenience of discussions, the respondent and appellants would be referred to herein after as plaintiff and defendants, respectively.
5. It is alleged that the land in Schedule A was originally purchased by one Ganesh Saha in the year 1967. Thereafter, the plaintiff purchased such land on the strength of sale deed No. 5821/70 and came to occupy such land. In due course, his name was mutated in the relevant records of right. The land, prescribed in Schedules B and C to the plaint was inherited by plaintiff from his father and in due course, the land described in B and C Schedules too fell to his part as being his inherited properties. The defendant, namely Abed Ali, had his land on the western and southern side of the aforesaid land.
6. In month of April 2002, the defendants erected bamboo fence encroaching 30 feet land on the eastern side of the suit land. On his protest, the defendants replied that they would vacate the land subject to demarcation made by the Revenue Officer. In due course, the plaintiff took necessary step to get his land demarcated. On such demarcation, the land of the plaintiff was found being encroached upon by the defendants. On a request being made by plaintiff, the defendant did not show any interest in vacating the land which was under their illegal occupation.
7. Having found no other way out, the son of the plaintiff filed several petitions same being Petition No. 390/04-05 in respect of KP Patta No. 73 and petition No. 299/04-05 in respect of KP No. 160 before the concerned Revenue Authority to get his land demarcated. Responding to such request, the Revenue Authority demarcated the land in question and found that the defendants had encroached a patch of land about 30 feet by breath on western side and a patch of land about 20 feet by breath on the southern side.
8. The land which was so encroached by the defendants was described in the Schedule D to the plaint. The plaintiff, therefore, approached this court seeking a decree for evicting the defendants from the suit land. The summon of the suits were served on the defendants. The defendants entered appearance and having filed written statement contested the suit.
9. According to them, the father of the defendant late Sader Ali purchased the land measuring 1K-8L out of 4B-2K-7L covered by Dag No. 946 by registered Sale Deed No. 4899 which was followed by delivery of possession. After the death of the fathe
