The court emphasized the importance of proving possession and the bar of limitation in property disputes.

JUDGMENT :

Kalyan Rai Surana, J.

Heard Mr. A.C. Sarma, learned senior counsel, assisted by Mr. B. Deori, learned counsel for the appellants. None appears on call for the respondents.

2. This appeal under Section 100 C.P.C. is directed against the judgment and decree dated 25.11.2003, passed by the learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati in T.A. No. 60/2002, thereby affirming the judgment and decree dated 16.09.2002, passed by the learned Civil Judge (Junior Division), Rangia in T.S. No.3/1996.

3. This appeal is by the plaintiff. In course of the proceeding, the sole appellant had died and he was substituted by his legal representatives. The respondent No.1 was arrayed as defendant No.1 in the suit.

4. The truncated case projected in the plaint is that Late Purna Saikh and Late Gomla Saikh were two brothers, who were the owners of 4B-2K-13L, land described in Schedule-A of the plaint. The respondent No.1 in the suit is the son of Late Purna Saikh and the appellant No.1 is the son of Late Gomla Saikh. At the time of filing the suit, he projected himself to be 60 years old and that his father is stated to have died about 55 years ago and accordingly, the appellant was under the care of Late Gomla Saikh. It is projected that although Late Gomla Saikh had sold of 3B-2K-13L out of the said Schedule-A land to respondent No.2 in the year 1936, claiming it to be actually a gift as the land was sold without any sale consideration. It is also projected that the said land was not sold for the benefit of the appellant to meet his expenses. It is projected that the sold land was mutated in the name of respondent No.2 on 27.05.1963. It is claimed that there was amicable partition between the appellant and the respondent No.1 in the presence of village elders. Thereafter, in connection with Perfect Partition Case No. 8/1981-52 and 22/1951-52, land measuring about 1B-3K-17L, described in Schedule-B of the plaint was apportioned in the share of the appellant. It was claimed that although the respondent No.2 had purchased 3B-2K-13L, but vide order dated 23.06.1995 passed by the S.D.C., Rangia, the name of respondent No.2 was mutated in respect of entire 4B-2K-13L of Schedule-A. Claiming that the respondent No.2 had illegally encroached and constructed temporary construction over excess land, which was earlier in his possession. Accordingly, the appellants had prayed for declaration of absolute title in respect of the suit land and for confirmation of possession of Schedule-B land. It was also prayed for cancellation of collusive and fraudulent sale deed executed by Late Purna Saikh, and for correction of land records. The appellant had also prayed for issuance of precept, for direction to defendants No.2 to 7 to deposit rent for temporary shed constructed on Schedule-B land, and for cost.

5. The respondents No.1 and 2 had filed their separate written statement and denied the statements made in the plaint. The respondent No.1 had also filed a counter-claim along with his written statement, praying for declaring and confirming right, title, interest and possession over the land measuring 4K-10L covered by Dag No. 1243, 1244 and 1246 of K.P. Patta No. 109; to uphold the order dated 30.03.1995 passed by Circle Officer in M.C. 6/94-95; and confirmation of right, title, interest and possession over 10L land covered by Dag No. 1245 of K.P. Patta No. 121; and for cost.

6. On the basis of pleadings, the learned trial Court had framed the following issues and additional issues for trial:-

1. Is there any cause of action for the suit?

2. Whether the suit is maintainable in its present form?

3. Whether the suit is barred by law of limitation?

4. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?

5. Whether the plaintiff has got right, title and interest over the suit land by right of perfect partition as per perfect partition case Nos.8/51-52 and 22/51-52?

6. Whether the father of the defendant No.1 was the absolute owner