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TMI Blog2013 (10) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... er which is the disputed house. Subsequently, the quarter was allotted to Rajesh, who is husband of PW2. After he had resigned from the services of the Tea Estate, the quarter was allotted to PW2. DW1 had also deposed that Rajesh and Nandi had separated after about 3 years of marriage. There is also evidence that all of them used to reside together in that disputed house and that the defendant forcefully evicted PW2 from the quarter - Decided against appellant. - R.S.A. 153 OF 2002 - - - Dated:- 22-8-2013 - A.K.GOSWAMI , J. For the Appellant : R.L. Yadav and Mrs. Kalpana Yadav. For the Respondent : D. Baruah. JUDGMENT:- This second appeal is preferred by the appellant/defendant against the judgment decree dated 29.11.2001, passed by the learned Civil Judge (Senior Division), Tinsukia in Title Appeal No. 03 of 1993 dismissing the appeal and upholding the judgment and decree dated 08.01.1993 passed by the learned Munsiff No. 2, Tinsukia in Title Suit No.18/86. 2. The second appeal was admitted to be heard by an order dated 08.01.2003 on the following substantial question of law: "Whether the learned court below misread the evidence of PW4 in concluding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements. He was not served with a legal notice. It is pleaded that in the year 1918, his grandfather Jhulan Gore and his father Haralal Gore, who hailed from Madhya Pradesh, settled themselves along with other family members at Margherita near Dehing Tea Estate by clearing jungles and trees in an area of land measuring about 200-250 Bighas. Initially kutcha houses were raised for residential purpose and the rest of the land came to be cultivated. The area, in course of time, became famous as Jhulan Basti and the defendant is residing along with his family members in the said land. It is also stated that land measuring 9 Bighas covered by Dag Nos. 258 and 259 corresponding to old Dag No. 104 (A) was possessed by the defendant since the time his father constructed a pucca house thereon in the year 1955. The said plot of land was allotted to the defendant by Government of Assam vide land distribution certificate being No. 70856 dated 08.05.1976. It is also asserted that plaintiff has no right, title and interest over the land and the house is owned and possessed by the defendant. 6. An additional written statement was also field by the defendant stating that the 9 Bighas of land unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y holding the defendant to be a trespasser. 10. The learned lower appellate court noted that Dag No. 59 originally contained a stretch of land measuring 61 Bighas 10 Lechas belonging to the Tea Estate and 21 Bighas 2 Kathas 15 Lechas were surrendered to the Government of Assam by the plaintiff being ceiling surplus land and it retained 39 Bighas 2 Kathas 15 Lechas. As per order of the Sub-divisional Officer dated 31.03.1996, Dag No. 258 corresponding to Old Dag No. 59 and Dag No. 259 corresponding to Old Dag No. 32 were converted to Periodic Patta No. 1 in the name of the defendant. On the basis of evidence of PW4, learned lower appellate court held that suit premises was in the un-surrendered part of Dag No. 59 and not in Dag Nos. 258, 259 allotted to the defendant. On consideration of evidence on record, the learned lower appellate court also recorded a finding that the defendant was a trespasser. Accordingly, Issue Nos. 4 and 5 were decided in favour of the plaintiff. 11. Mr. R.L. Yadav, learned counsel for the appellant submits that the ceiling surplus land was allotted to the persons in occupation. The defendant was in occupation of the suit premises since 1955 and the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to entertain a second appeal even on question of facts provided the court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by an erroneous approach to the matter. 15. Translated version of the evidence recorded was made available to the Court by the learned counsel for the parties. Mr. Yadav had drawn my attention to certain portions of the evidence of PW4 to drive home his point regarding perversity. It will be helpful to reproduce the said portions of evidence of PW4, which is as follows: ".....Dag No. 59 of Tea Periodic Patta No.1 (Mauza Makum), earlier contained 61 Bighas 10 Lechas of land. All the aforementioned land of Dehing Tea Estate of Makum Tea Company India Ltd. of this land 39 Bighas 2 Kathas 15 Lechas remained in the name of the company and the rest 21 Bighas 2 Kathas 15 Lechas became ceiling sarkari land. The aforementioned 21 Bighas 2 Kathas 15 Lechas of ceiling land became different Dags and the numbers are 258, 261, 263, 264, 266 and 574. The order of ceiling was made on 13.08.76 I measured the aforesaid land. We took over the ceiling land which made sarkari. The land which remained in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X
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