9911796707
TMI Blog2015 (6) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... and reversing the judgment and decree dated 28.06.2004 in Title Suit No. 22/01 passed by the learned Civil Judge (Jr. Divn.) No. 1, Nalbari, whereby suit of the plaintiffs was partly decreed without cost. 2. The case set out by the plaintiffs is that father of the plaintiffs, namely, Rajendra Deka and Gajia @ Gaji were brothers. Gaji was untraced for 30/35 years and as such the plaintiffs' father was possessing the entire land in K.P. No. 189 of Village-Narayanpur. There is 2 Bigha 9 Lecha, 1 Bigha 4 Katha and 1 Bigha 2 Katha 11 Lecha, in Dag Nos. 62,76 and 94 of K.P. No. 189, respectively, totaling 5 Bigha 2 Katha. Defendant has his land near the said plots of land in a different Dag and Patta. Father of the plaintiffs died about 4 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in possession of the said land openly and without any interruption for more than 12 years as his own land and he had continued to remain in possession of the same. It is admitted that no sale deed was executed by Rajendra but he had signed in the chitha. Rajendra had not made any objection in his life time in respect of the mutation and such mutation was effected long time before Rajendra had died. 4. On 16.11.2005, this court framed the substantial questions of law, which are as follows:- "1. Whether the findings substituted by the appellate Court to hold the possession of the defendant for 12 years adverse to the interest of the actual owner of the land inspite of admission of the defendant in cross examination as D.W.-1 that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of the actual owner of the land, is utterly perverse as the evidence of defendant No. 1, who examined himself as DW-1, would itself demonstrate. It is also submitted by him that the defendant claimed to have purchased Schedule 'Kha' land and he himself stated that since Gaji was missing for more than 7 years, Rajendra was having right, title and interest of the land of Gaji. Therefore, the learned lower Appellate Court was wrong in making an issue with regard to non-framing of issue regarding death of Gaji and in reversing the finding in issue No. 4 relating to right, title and interest of the plaintiff on that count, he submits. He contends that judgment of the learned lower Appellate Court is perverse and inconsisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered instrument or by delivery of the property and the delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. 10. In the written statement filed by the defendant, the consideration amount was not specified. It was only indicated that reasonable consideration amount was paid. In cross-examination, he had indicated that on 16.10.1964, he had paid about 100/150 rupees and thereafter, he had made payment of further amounts towards the consideration amount. Therefore, it will appear that consideration amount was more than rupees 100 and no sale could have been effected in accordance with law without a registered instrument. Both the courts below had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse possession. Not only the defendant himself, but his witness D.W.6 also deposed that he had seen Rajendra being in possession of the suit land during his lifetime. The defendant miserably failed to prove the plea regarding adverse possession. The learned lower Appellate Court overlooked the most material part of the evidence of D.W. 1 defendant himself and recorded a perverse finding mat defendant established the plea of adverse possession. 12. In view of the above discussion, substantial questions of law will have to be answered in favour of the appellants. The appeal is, accordingly, allowed. The impugned judgment of the learned lower Appellate Court is set aside and the decree of the learned trial Court is restored. No cost. Registry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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