The burden of proof lies with the defendant to substantiate claims over the disputed land, a failure results in dismissal of appeal.

JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

1. Heard learned counsel Mr. D.C. Chakravary for the appellant and learned counsel Mr. S.P. Choudhury for the respondent.

Factual Matrix

2. This appeal is preferred under Section 100 read with Order XLII of the Code of Civil Procedure, 1908 (in short ‘CPC’) challenging the judgment and decree dated 11.01.2019 passed by the learned Civil Judge No.2, Cachar, Silchar in Title Appeal No.4/2013. This appeal was admitted on the following substantial question of law;

“Whether the learned courts below had misread and misconstrued note No. 3 of exhibit-3 i.e. Jamabandi leading to incorrect finding of fact on issue No.5, which has vitiated the judgment and decree impugned herein on ground of perversity?”

3. The learned Appellate Court has upheld the judgment and order dated 19.10.2012 passed by the learned Munsiff No.1, Cachar, in Title Suit No. 50/2003 which was renumbered as Title Suit No.45/ 2006.

4. The genesis of the case was that Jayraj Das as plaintiff has brought up a title suit being Title Suit 50/2003 which was re-numbered as Title Suit No.45/2006 seeking declaration of right, title and recovery of khas possession and for confirmation of possession over the land mentioned in the schedule of the plaint. Jayraj Das is arrayed as respondent No.1 in the present appeal. The original title suit was brought up by Jayraj Das against the following persons named herein below:

1. Ajim Uddin, 2. Fakaruddin @ Kuti Mia

3. Sunaban Bibi

4. Hasmat Ali,

5. Idoi Mia

6. Jiban Chandra Modak

5. The respondent No.6 of the original title suit is the present appellant of this case and the other respondents are arrayed as respondent Nos.2, 3, 4, 5 and 6. During the pendency of this appeal, the name of respondent No.4 Sunaban Bibi was deleted from the array of parties.

6. The genesis of the case was that Ishad Ali and Arfan Ali were Pattadars of the suit patta no. 8 and on death of Ishad Ali his son Watir Ali inherited his father Ishad Ali’s share and also purchased the entire share of Arfan Ali and he later sold 8 kathas of land out of his aforesaid land to one Nirendra Kumar Roy who in turn sold the said land to one Abdul Khaleque. Jayraj Das (hereinafter referred to as ‘plaintiff’) purchased the said land of 8 Kathas from Abdul Khaleque, which is the suit land vide registered sale deed, but the Defendants most illegally encroached into the land of the Plaintiff by constructing walls over the eastern and southern side of the suit land and thereby dispossessed the plaintiff from the suit land and later the plaintiff learnt that the defendant No.6 had purchased land admeasuring 4 kathas appertaining Dag No.39 and 12 of 2nd R.S. Patta No.8 of Mouza Uttar Kishnapur, Part-III, Borakpar, Silchar from Arfan Ali. It is contended that the defendant No.6, Jiban Chandra Modak cannot acquire any title by said purchase from Arfan Ali as he has no saleable interest left as Watir Ali purchased the entire interest of Arfan Ali and by said purchase the defendants cannot claim rights over the land of plaintiff and such dispossession of the plaintiff from the suit land impelled him to file this suit.

7. The defendant Nos. 1 to 5 failed to contest the suit and so the suit proceeded ex-parte against the defendant Nos. 1 to 5. The defendant No.6 contested the suit and filed written statement wherein he stated the suit has no cause of action, is bad for non- joinder of necessary parties, not maintainable and so on and so forth. Defendant No. 6 denied the contents of the Plaint and stated that the land described in the Schedule of the Written statement which includes the suit land was originally under the ownership and possessi