Document Fragment View

Matching Fragments

3. The case projected in the plaint is that the father of pro forma defendant Nos. 19 and 20, Azob Ali Laskar, was the original owner of the suit land and the predecessor of the plaintiffs and pro forma defendant Nos. 10 to 18 had purchased the suit land, vide a registered Sale Deed dated 27.04.1953 and possessed the purchased land by way of an amicable partition. The predecessor of defendant Nos. 10 to 18, namely, Arjod Ali, had gifted away land measuring about 4 Katha and odd from his purchased share for construction of a mosque and a tank and, thus, exhausted his share. At the same time, the predecessor of the plaintiffs, Ibrahim Ali Borbhuiya, out of his purchased share measuring about 8 Katha 3 Chattak 6 Gonda 12 Kora and 2 Kranti, sold about 3 Katha to the father of pro forma defendant Nos. 10 to 18 and delivered khas possession to him. It is pleaded that the plaintiffs were enjoying their possession of the suit land through the principal defendants, who were their licensees and were staying in "Kachha" houses over the suit land. They were prohibited from making any permanent construction over the suit land. The principal defendants, in collusion with the pro forma defendants, falsely claiming jote right over the suit land, obtained permission from the Municipal Board, Hailakandi, on 27.01.97, by furnishing wrong Dag number and Patta number for construction of a pucca building. It was asserted that the principal defendants were not tenants of the plaintiffs and they had become trespassers over the suit land and Kachha houses from 06.01.97 as they denied relationship of licensee and licensor. Objection being filed before the Municipal Board, Hailakandi, they were prohibited from proceeding with the construction, but they illegally started construction and raised construction up to plinth level.

4. The principal defendant Nos. 1 to 9 filed written statement. Apart from taking the legal pleas, such as non-maintainability of the suit, non-joinder of parties, etc., it was stated that Dag No. 1854 of 2nd R.S. Patta No. 212 consisted of 3 Katha, and Dag No. 1855 of the said Patta consisted of 8 Katha 15 Chattak; that the predecessor of the principal defendant Nos. 1 to 9, Late Abjor Ali @ Afjor Ali was a tenant of Late Azob Ali Laskar, the original owner of the land, covered by Dag No. 422/994 of R.S. Patta No. 104, and that the 2nd R.S. Patta No. 212 with its Dag Nos. 1853, 1954 and 1855 was curved out from R.S. Patta No. 104. It was also stated that Late Azob Ali Laskar had sold his land to Ibrahim Ali and Arjod Ali. However, as the predecessor of the principal defendants, Abjor Ali @ Afjor Ali was staying there as tenant with homestead, possession of the land could not be handed over to them and Abjor Ali @ Afjor Ali continued to stay in the land as tenant. A rent suit, being Rent Suit No. 12/54, was filed by Ibrahim Ali and Arjod Ali against Abjor Ali and the suit was compromised on 05.01.55 and, thereafter, Abjor Ali was paying rent to the new landlord at the rate of Rs. 7.50 for 1360 BS, and they were also issuing receipt in respect of the rent paid by Abjor Ali. On the death of Ibrahim Ali, his son Abdul Rashid, who is predecessor of the plaintiff Nos. 4 to 8,pro forma defendant No. 11and plaintiff No. 4, granted receipt of rent to Abjor Ali and, thereafter, to defendant No.

6. During trial, the plaintiffs examined 4 witnesses and the defendants examined 3witnesses. Both the parties also exhibited some documents.

7. The learned trial Court recorded a finding that the plaintiffs failed to prove that there was an amicable partition and as both the plaintiffs and pro forma defendants had issued rent receipts, held that the plaintiffs' right, title and interest over the suit land alone cannot be justified as the right, title and interest of pro forma defendants are not extinguished. A finding was also recorded that the defendants are tenants and they are not licensees under the plaintiffs. It was also held that the plaintiffs ought to have served notice under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (for short, 'the Act of 1955') and that a suit is maintainable only after expiry of 1 month from the date of receipt of the notice by the defendants.