ORDER

13.10.2023 Date :

Heard Mrs. P. Barman, learned counsel for the appellants and Mr. D.

Mazumdar, learned senior counsel, assisted by Mr. D. Nath, learned senior Govt.

advocate for the respondent.

2. The appellant herein is the defendant in the suit. By filing this appeal under Section 100 CPC, the appellants have assailed the first appellate judgment and decree dated 24.07.2009 passed by the learned Civil Judge, Dibrugarh in TA 50/2006 by which the appeal was allowed and the judgment and decree dated 21.07.2006 passed by the learned Civil Judge (Junior Division) No. 1, Dibrugarh in TS No. 108/2002 by which the suit was dismissed, was set aside.

3. This appeal was admitted for hearing by order dated 16.11.2009 on the basis of the following substantial question of law.

“Whether the learned lower appellate Court was justified in decreeing the suit solely on the basis of presumption of a letter dated 07.11.2000 written by the defendant to the plaintiff to prove that the land was encroached upon by the defendant?

4. The respondent plaintiff had filed a suit against the appellant praying for decree of declaration that the plaintiff had right, title and interest over the suit land and for a declaration that the defendant-appellant had no right and authority to cause disturbance/ interference or to infringe the right, title and interest over the possession of the respondent-plaintiff in respect of suit land and for recovery of khas possession by evicting the appellant-defendant, decree for permanent injunction and other reliefs. The suit land is a plot of land measuring 4B-0K-0L covered by Dag no. 355, 391 and 392 of NLR Grant No. 26 under Bogdung Mouza PO- Panitola in the district of Dibrugarh along with a room made out of bamboo wall and CI sheet roof definite with boundaries as described in the schedule to the plaint. On 07.11.2000, a letter was written by Sibanath Baruah, Balindra Nath Rajkhowa and Kamal Talukdar as representative of public and members of a Steering Committee of the Divine Academy School to the Senior Personal Manager of the respondent to inform a meeting was arranged to be held on 02.09.2000, to establish a English Medium School from session 2001 and to request the Panitola Tea Estate for releasing a plot of land measuring 8 bigha covered by Dag no. 354 of Nalini Hulla Bengali Gaon. Thereafter, in the month of April, 2002, an attempt was made by those persons to encroach upon the suit land, which was reported at the police and proceeding under Section 145 CrPC was drawn up. However, a bamboo wall room with CI sheet roof was erected by the respondents and affixed a sign board in the name of Divine Academy School. On 15.12.2002 another attempt was made to raise construction over the suit land and therefore, the respondent-plaintiff had filed the suit.

5. The appellants-defendants had contested the suit by filing a written statement, and it was claimed that they are in occupation of the suit land with consent of the original owners i.e. M/s. Parshuram T.E. of M/s. Chunnilal Pannalal and Co. since long and openly. It was also claimed that the land did not belong to the respondents nor it was a play ground or a grazing ground and it was claimed that the residential quarters were standing on some other land near the suit land. It was also projected that the letter dated 07.11.2000 was not in respect of the suit land, but some other land. It was denied that any construction was set up and any attempt was made to encroach the land and accordingly, the prayer was made to dismiss the suit. In course of trial, the learned trial Court had framed seven issues as well as an additional issue no.8 as follows.

1. Whether there is cause of action in the suit?

2. Whether the suit is maintainable in law and facts?

3. Whether the defendants encroached the suit land in the month of April, 2002 illegally and erected bamboo fencing around the suit land?

4. Whether the plaintiff has right, title and interest over the suit land? 5. Whether the d