ABDUL JABBAR Vs. JYOTISH CH. PAUL

JUDGEMENT

(1.) This is a second appeal under Sec. 100 of the Code of Civil Procedure, 1908 (for short, "CPC") challenging the legality and validity of the judgment dtd. 20/7/2019 and decree thereof, passed by learned District Judge, Unakoti Judicial District, Kailashahar, in connection with Title Appeal No.03 of 2019 whereby and whereunder learned appellate court has affirmed the judgment and decree dtd. 15/9/2018 and 29/9/2018 respectively, passed by learned Civil Judge, (Sr. Division), Court No.1, Unakoti District in connection with Title Suit No.14 of 2017.

(2.) Since common questions of law and facts are involved in both the appeals, these two appeals are taken up together for disposal by this common judgment on consent of the learned counsels appearing for the parties to the lis.

(3.) The appellant, Abdul Jabbar was the principal defendant of the case bearing No. T.S. 14/2017 instituted by plaintiffs, Fayjul Haque and Nihar Uddin, the respondent nos. 2 and 3 here-in, both being the sons of Lt. Kabir Miah. Late Sudhir Chandra Paul, who was impleaded as respondent no.1 in this appeal was proforma defendant of T.S. 14/2017. On his death, during the pendency of this appeal his legal heirs have been impleaded as respondent nos. 1(a) to 1(j). The plaintiffs, Fayjul Haque and Nihar Uddin instituted the suit for declaration of their right, title and interest over the suit property described in Schedule-'B' being the part and parcel of the land of Schedule-'A' of the plaint and for recovery of possession of the said Schedule-'B' land. It is asserted in the plaint that 'A' Schedule land measuring 0.80 acres under Khatian No.578 and CS Plot Nos.431/1272 originally belonged to late Sudhir Chandra Paul, the proforma defendant. Late Sudhir Chandra Paul had sold the suit land to one Sonajan Bibi vide registered sale deed No.1-1561, dtd. 21/4/1980 when physical possession was also handed over to said Sonajan Bibi. Since then, Sonajab Bibi has been possessing the land of Schedule-'A' exercising all her rights as owner. During revisional settlement operation 0.50 acres of land of Schedule-'A' was recorded in the name of her husband Kabir Ali alias Kabir Miah vide Khatian No.340 and land measuring 0.13 acres had been recorded in her name vide Khatian No.339 and rest of the land measuring 0.17 acres remained unchanged i.e. in the name of late Sudhir Chandara Paul vide Khatian no.332, but, entire 'A'- Schedule land was under the exclusive possession of Sonajan Bibi till her death. After expiry of both Sonajan Bibi and her husband Kabir Miah about 7/8 years ago the plaintiffs became the absolute owners and possessors of entire 'A' Schedule land as per Islamic Law of Inheritance. It is found that name of one Farmuja Bibi was recorded as permissive possessor at Col. No.16 of Khatian No.332 comprising land of Schedule- 'B'. It is the plea of the plaintiffs that the name of Farmuja Bibi was illegally recorded as permissive possessor in the Khatian No.332 since she had no right, title and interest and possession over the said land under Khatian No.332. According to plaintiffs, Farmuja Bibi had forcefully occupied the land under Khatian No.332 i.e. the land of Schedule 'B' on 10/3/2012 denying the right, title of the plaintiffs, being the son of said Farmuja Bibi the principal defendant Abdul Jabbar has been using the suit land of Schedule-'B' by way of fishery. To establish the title, the plaintiffs, had brought on record the certified copy of registered certified deed no.1- 1561 and certified copies of Khatian Nos.332, 340 and 339. They have stated in para 9 of the plaint that the original 'kabala' [sale deed] was destroyed.