JIAUR RAHMAN Vs. BISWAJIT PAUL

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree dated 24 th February, 2000 passed by the learned District Judge, Cachar at Silchar in Title Appeal No.16/1996, whereby and whereunder the appeal preferred by the predecessor -in -interest of the present appellants has been dismissed by upholding the judgment and decree dated 31 st July, 1996 passed by the learned Assistant District Judge, No.2, Cachar at Silchar in Title Suit No.110/1988.

(2.) THE plaintiff instituted the aforesaid suit for declaration of right, title and interest and confirmation of possession in respect of Schedule -2 land measuring 2 Bighas 14 Kathas 6 Chataks, morefully described in the said schedule, and also for permanent injunction with an alternative prayer for partition. The case of the plaintiff as projected in the plaint is that after the death of the original owner Promotha Krishna Sarma, the land measuring 5 Bighas 8 Kathas 6 Chataks was devolved on the proforma defendant Nos.2 and 3, namely Smti. Nirmala Devi and Sri Manik Sarma, out of which land 1 Bigha 10 Kathas was acquired by the Government leaving 3 Bighas 18 Kathas 6 Chataks of land which was inherited by the proforma defendant Nos.2 and 3. According to the plaintiff, the land measuring 2 Bighas 14 Kathas 6 Chataks (described in Schedule -2 to the plaint) was transferred by the proforma defendant Nos.2 and 3 vide 4(four) sale deeds executed in the months of June and July, 1984 (Exhibits -1 to 4) and by right of purchase they have acquired the right, title and interest over the said land. It is also the case of the plaintiff in the plaint that the defendant No.1 also purchased a plot of land measuring 1 Bigha 4 Kathas from the proforma defendant Nos.2 and 3 vide sale deed dated 10 th May, 1984 (Exhibit -A). The further case of the plaintiff is that there was a move to dispossess the plaintiff from the land described in Schedule -2 to the plaint, possession of which was handed over to him by the proforma defendant Nos.2 and 3 after the sale, which resulted in filing of a perfect partition case, which prayer, however, was rejected, as the land revenue assessed to the said case was less then Rs.5/ -. According to the plaintiff, thereafter, a deed of settlement was executed between the plaintiff and the defendant No.1 on 9 th February, 1987 (Exhibit -7, which was marked as exhibit under objection by the defendant No.1). The plaintiff pleaded in the plaint that since the defendant No.1 was disturbing his possession, he has filed the suit with the prayer, as noticed above.

(3.) WHILE the defendant No.1 has contested the suit by filling written statement, the proforma defendant Nos.2 and 3 did not contest the said suit despite service of summons. The defendant No.1 in the written statement, while denying purchase of the land by the plaintiff as contended in the plaint, has pleaded that the plot of land measuring 1 Bigha 4 Kathas was purchased by him by registered deed of sale dated 10 th May, 1984 (Exhibit -A) from the proforma defendant Nos.2 and 3 and the land which stated to be purchased by the plaintiff is not the land which was purchased by the defendant No.1. The defendant No.1 during pendency of the suit also filed an application seeking partition apart from an application for framing of an additional issue as to whether the defendant No.1 is entitled to the partition as prayed for. Accordingly, the issue No.9 was framed by the learned trial Court, which relates to the claim of the defendant No.1 for partition. The learned trial Court on the basis of the pleadings and also the aforesaid application framed the following issues for consideration and decision: -