TILESWAR SAIKIA Vs. MD ABDUL RASHID & OTHERS

JUDGEMENT

(1.) (Oral)- This appeal is by the defendant No. 4. This appeal arises against the judgment dated 30.8.93 passed in TA 4 of 1992 by the learned Assistant District Judge, Golaghat. By the impugned judgment, the learned Judge dismissed the appeal and affirmed the judgment dated 6.7.92 passed by the learned Munsiff No.1 at Golaghat in TS 14 of 1986.

(2.) The brief facts are as follows : One Smti Mismai Begum brought a suit for declaration that the decree passed in TS 12 of 1987 (decree dated 23.6.88) passed by the learned Munsiff No. 1 at Golaghat is not a legal and valid decree and for a further declaration that the registered sale deed dated 19.9.67 obtained by defendant No.4 from Sk Chand Mahammad, the husband of the plaintiff is not valid deed of sale and for cancellation of the same and also for a further declaration that on the basis of that sale, the defendant No.4 has not acquired any right, title and interest to the land and for recovery of the possession of the land on the allegation that on 8.7.88 the defendant No. 4 did not acquire any right. There was also a prayer for permanent injunction. The suit was filed on 23.8.88. It is the case of the plaintiff that they came to know the existence of the sale deed in the judgment of the aforesaid suit i.e TS 12 of 1987 and thereafter got the certified copy of the same from the Sub Register on 6.8.88. A written statement was filed by the defendant No.4 and his case was that the deed was executed legally and validly. Earlier suit i.e TS 12 of 1987 was filed by one Faiz Mahammed and 2 others and that also a suit for declaration and cancellation of the registered sale deed No.3758 dated 19.9.67 executed by late Sk Md Hussain in favour of the present defendant (he was defendant No. 1 in that particular suit). It may be stated that on the basis of that deed of sale in the year 1967, the defendant Tileswar Saikia got his name mutated in respect of the land and not only that he filed a Perfect Partition Case No. 27 of 1981 and notice of it was served on the pattadars and an objection was filed on behalf of the pattadars and the learned SDC, Golaghat vide order dated 9.9.86 referred the objectors to approach the competent civil Court for disposing of the claim against the mutation. It was the case of the plaintiff of the earlier suit that they came to know of this deed of sale at the time of hearing of the partition case and they later on obtained the certified copy of the sale deed and Jamabandi dated 12.11.86 and 24.11.86 respectively. The learned Munsiff in that particular judgment, on consideration of the materials on record, dismissed the suit on contest with cost. In that suit, issue Nos. 4, 5 and 6 were as follows :

(3.) It was the findings of the learned Munsiff in that a suit with regard to execution of the deed of sale are as follows :