ORDER

18.10.2023 Date :

Heard Mr. S.K. Ghosh, learned counsel for the appellant.

2. This appeal under Section 100 CPC has been filed to assail the appellate judgment and decree dated 09.09.2015, passed by the learned Civil Judge, Nagaon in Title Appeal No. 12/2013, thereby dismissing the appeal and affirming the judgment and decree dated 19.01.2013, passed by the learned Munsiff, Kaliabor in T.S. No. 16(K)/2017, by which the suit of the respondent no.1 was decreed.

3. The learned counsel for the appellant has referred to the draft substantial questions of law contained in the memo of appeal and has submitted that he has prepared a re-casted substantial question of law and prayed for admission of appeal on the said substantial questions of law. The draft substantial questions of law are as follows:

1) Whether the Learned Courts below erred in Law in decreeing the suit of the plaintiff without considering the provision of section 48 of the T.P. Act?

2) Whether the Learned Courts below erred in Law in decreeing the suit of the plaintiff without applying the provisions of section 101 of the Indian Evidence Act?

3) Whether the Learned Courts below erred in Law in not deciding the point of Law as regard when there was dispute between Dag No./Patta No. And boundary of the suit land the boundary shall prevail?

4. The respondent no.1 is the plaintiff in T.S. No. 16(K)/2017 wherein the appellant is the respondent no.1. The vendors in respect of the sale deed executed in favour the respondent no.1 were arrayed as proforma defendant nos.1 and 2. The plaint does not contain any statement as regards to the proforma respondent no.2.

5. The case of the respondent no.1 is that he had purchased 1 bigha- 3 katha land from the proforma respondent nos.1 and 2 out of their total land measuring 2 bigha- 1 katha, covered by dag no. 307 of periodic patta no.47 at Rangalu Kissamat under Dwarbaguri Mouza in the district of Nagaon at an agreed consideration of Rs.12,000/-, by registered sale deed no. 86/97. It is claimed that he was put into possession of the suit land and his name was also mutated in respect of the purchased land. It was claimed that the respondent no.1 tried to forcibly occupy the suit land and accordingly, a proceeding under Section 145 Cr.P.C. was drawn up at the instance of the respondent no.1 against the son of the appellant. It is claimed that the appellant had forcibly occupied 1 bigha- 1 katha out of the suit land on 20.10.2005. Accordingly, a suit was filed for declaring the title of the respondent-plaintiff in respect of the ka schedule land; the respondent no.1 also prayed for confirmation of his possession over the land described in schedule kha within schedule ‘ka’ land; for evicting of the respondent no.1 from the land described in schedule ka and kha and claimed khas possession of the land described in schedule ga. It may be mentioned that schedule ‘ga’ of the plaint relates to 1 katha land within schedule ‘ka’ excluding land of schedule ‘kha’. The respondent no.1 had also prayed for permanent injunction. The schedule ‘ka’ land is as follows:

“ SCHEDULE 'KA'

Land measuring 1B 1K out of the total land measuring 2B 3K in Dag 307 of Periodic Patta No. 47 in Rangalu Kissamat, Mouza Dwarbarguri, District Nagaon. The boundaries of the land are:

North: Naba Kumar Barkakati, South: Bidyabati Chamua, East: Dipankar Goswami, West: Subidya Mahanta and Muchari Kurmi.”

6. The schedule ‘ga’ from which eviction was sought for against the appellant is as follows:

“ SCHEDULE 'GA'

Land measuring 1K within the land of Schedule 'Ka' excluding the land of Schedule 'Kha'. The boundaries of the land are –

North: Naba Kumar Barkakati;

South: Land of Schedule 'Kha' which is under the plaintiff's possession;

East: Dipankar Goswami;

West: Plaintiff's land in Schedule 'Kha'.”

7. The appellant, as defendant no.1, had filed the written statement and along with usual plea, it was the stand of the appellant that the suit was barred under Section 64 and 65 of the Limitatio