SAUKAT ALI Vs. MUSSTT NEKJAN BIBI

JUDGEMENT

(1.) This appeal by the defendants is directed against the judgment and decree dated 23.6.2000 passed by the learned Civil Judge (Sr. Division), Darrang at Mangaldoi in Title Appeal No. 12/1998 allowing the appeal by decreeing the suit of the plaintiffs/respondents and by setting aside the judgment and decree dated 12.5.1998 passed by the learned Civil Judge (Jr. Division), No. 1, Darrang at Mangaldoi in Title Suit No. 23/1996, whereby and whereunder the plaintiffs' suit was dismissed.

(2.) The plaintiffs/respondents instituted Title Suit No. 23/1996 in the court of the learned Civil Judge (Jr. Division), No. 1 (now Munsiff), Mangaldoi for declaration of right, title and interest over the land measuring 2 Bighas, 4 Kathas, 31/2 Lechas described in Schedule Ka(2), which is half of the land measuring 5 Bighas, 3 Kathas, 7 Lechas pertaining to Dag No. 293 of Kheras Periodic Patta No. 135 of village Satkholi under Sipajhar Mouza described in Schedule-Ka and land measuring 2 Kathas 1/2 Lecha described in Schedule-Kha(2), which is half of the land measuring 4 Kathas, 1 Lecha pertaining to Dag No. 500 of Kheras Periodic Patta No. 140 of village Satkholi, Mouza Sipajhar; for declaration that the registered deed of sale No. 1074 dated 18.4.1996 purportedly executed by the plaintiffs/respondent Nos. 1 and 2 in favour of the defendants/appellant Nos. 1 and 2 transferring 2 Bighas, 2 Kathas, 8 Lechas of land in Dag No. 293 of Kheras Periodic Patta No. 135 and 1 Katha, 12 Lechas in Dag No. 500 of Kheras Periodic Patta No. 140 of village - Satkholi under Sipajhar Mouza totaling 2 Bighas, 4 Kathas, as fraudulent and for cancellation and also for partition, alleging inter alia that the entire land described in Schedules-Ka and Kha measuring 5 Bighas, 3 Kathas, 7 Lechas and 4 Bighas, 1 Lechas, respectively, originally belong to the grand-father of the plaintiff Nos. 1 and 2, Bhoboka Sheikh and after his death their sons Sahar Ali and Mucha Sheikh, being the only heirs inherited the said property in equal shares. It has further been pleaded in the plaint that Sahar Ali left behind 2 (two) sons, namely Naimuddin and Saukat (defendant No. 1) and after the death of Naimuddin, the portion of the land over which he acquired title by right of inheritance devolved on the defendant Nos. 3 to 6. The further case of the plaintiffs in the plaint is that after the death of Mucha Sheikh, the second son of Bhoboka Sheikh, the plaintiff Nos. 1 and 2 inherited his share of property. According to the plaintiffs, they being the heirs of Mucha Sheikh, who inherited half of the property left behind by Bhoboka Sheikh, are entitled to half share on the land described in Schedules Ka and Kha to the plaint. The further case of the plaintiffs is that the plaintiffs' names were mutated alongwith the names of other heirs of Bhoboka Sheikh in the revenue records and the plaintiffs and the defendant Nos. 1 and 3 to 6 are jointly possessing the land, which they got by the right of inheritance, but the defendant Nos. 1 and 3 to 6 though with the understanding of giving the share of the crop was allowed to occupy the land with further condition that whenever the plaintiffs demand the possession they will vacate it, they refused to vacate, the land belonging to the plaintiff Nos. 1 and 2 and in the guise of execution of a deed for handing over the possession, the defendant Nos. 1 and 2 took the plaintiff No. 1 to Mangaldoi on 18.4.1996 and obtained her thumb impression on a sheet of paper wherein the mother of the defendant No. 2 put her thumb impression on behalf of the defendant No. 2. According to the plaintiff No. 1, she was given the impression that by that document the possession of the property belonging to the plaintiff Nos. 1 and 2 will be handed over and though they demanded the possession, they have been told that their share has been sold in favour of the defendant Nos. 1 and 2 on 18.4.1996. The plaintiffs have stated in the plaint that they never sold the land as shown to have been sold by the registered deed dated 18.4.1996.

(3.) The defendant Nos. 1, 2, 7, 8 and 9 contested the suit by filing joint written statement. The defendant Nos. 3 to 6 have also filed the joint written statement, however, supporting the case of the plaintiffs. In the joint written statement filed by the contesting defendant Nos. 1, 2, 7, 8 and 9 (the appellants in the present appeal) while admitting that the Schedule-Ka land originally belonged to the grand-father of the defendant No. 1 and the plaintiff Nos. 1 and 2 and the land described in Schedule-Ka(2) and Kha(2) have been inherited by the plaintiffs, after the death of their father Mucha Sheikh, who was the son of Bhoboka Sheik, the said land was under the care of the defendant Nos. 1 and 2, which was, however, subsequently transferred by the plaintiff Nos. 1 and 2 in their favour by a registered deed of sale.