An occupancy tenant cannot be evicted without evidence of land misuse rendering it unfit, adhering to the Assam Tenancy Act provisions.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

Heard Mr. Sheeladitya, learned counsel appearing for the appellants as well as Mr. O.P. Bhati, learned counsel representing the respondents.

2. This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) where the judgment and decree dated 13.03.2015 passed by the learned Civil Judge, Amingaon, Kamrup in Title Appeal No.94/2014 setting aside the judgment and decree dated 15.12.2010 passed by the Munsiff No.2, Kamrup in T.S. No.173/2006 (new) is under challenge.

3. In the year 1961 late Rajen Mahanta, the father of the present respondents died and at that time the respondents were minor children. Late Rajen Mahanta left behind 2 Bighas 3 Kathas 19 Lechas of land. This land was covered by periodic patta.

4. Apart from the said land, the respondents also had two other plots of lands, one measuring 1 Katha 10 Lechas and the other measuring 2 Kathas 16 Lechas under Dag No.43 and 44. This land was covered by annual patta.

5. Both the plots of lands are agricultural lands. During his lifetime, late Rajen Mahanta cultivated crops there.

6. After the death of Rajen Mahanta, the respondents cultivated the said lands through labourers. In the meantime, the respondent Narayan Mahanta became a major and his four sisters were also major. Narayan Mahanta had arranged their marriages with the help of his uncle late Kamala Kanta Mahanta.

7. It may be mentioned that during rainy seasons, the appellant Haren Sarma used to go to his own land through the aforementioned 2 Bighas 3 Kathas and 19 Lechas of lands of the respondents. In fact, late Ambali Mahanta, the mother of respondent Narayan Mahanta and others had allowed the present appellant to use the said passage during rainy season. The respondents Narayan Mahanta and others and their uncle Kamal Kanta Mahanta did not agree with the decision of Smt. Ambali Mahanta. After the death of Kamala Kanta Mahanta, the appellant Haren Sarma influenced Smt. Ambail Mahanta. This incident happened in the year 1965.

8. Thereafter, the respondent Hara Kanta Mahanta, son of the aforesaid late Rrajen Mahanta approached the appellant Haren Sarma on 7^th January, 2002 to take paddy as remuneration for cultivation of the land cultivated by agricultural labourers. Haren Sarma refused to give paddy to Hara Kanta Mahanta. He claimed that he had purchased the said land.

9. The respondents made an inquiry in the Revenue Circle Office and came to know that aforementioned plots of lands were mutated in the land records in the name of the appellant Sri Deepak Ch. Sarma, son of the other appellant Haren Sarma.

10. The appellant Haren Sarma was allowed by Smt. Ambali Mahanta to cultivate both the plots of lands by employing labourers when the respondents were minors. The appellant also obtained rayoti khatian in respect of the aforementioned 2 plots of lands, one measuring 1 Katha 10 Lechas and the other measuring 2 Kathas 16 Lechas. These are annual patta land.

11. Narrating the aforesaid facts, the respondents filed the suit praying for declaration of their right, title and interest over both periodic patta and annual patta land. They also prayed for recovery of possession of those lands.

12. The present appellants contested the case by filing written statement. They denied all the averments of the plaint. The appellants admitted that the aforesaid lands measuring 2 Bighas 3 Kathas 10 Lechas was owned by late Rajen Mahanta, the father of the respondents. They also admitted that Rajen Mahanta was the owner of the aforementioned two plots of lands measuring 1 Katha 10 lechas and 2 Kathas and 16 lechas. They claimed that after the death of Rajen Mahanta in the year 1961, the appellant Haren