ABDUL LATIF Vs. MUSTT. HAZERA KHATUN & ORS.

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated 22.12.2003 passed by the learned Civil Judge (Sr. Division) Barpeta in Title Appeal No. 13 of 2002 arising out of 'Title Suit No. 36 of 1997. The learned appellate Court vide impugned judgment set aside the judgment and decree passed by the learned trial Court in favour of the appellant/plaintiff. The plaintiff filed a suit for declaration of his right title and interest and confirmation of possession and also for declaration that the chitha mutation in favour of defendants was illegal. He sought for cancellation mutation in favour of the defendants. Anser Ali and Ahmed Ali were the original owner of the land measuring 2B 3K 17 Ls. Defendant Nos. 1 and 2 are legal heirs of Late Anser Ali. Ahmed Ali was impleaded as proforma defendant but he contested the suit and therefore, he was treated as Defendant No. 3.

(2.) THE plaintiff's case is that Anser Ali sold 2 bighas of land to Abdul Munnaf vide registered sale deed dated 29.06.1964. Successor -in -interest Abdul Munnaf sold B -Schedule land to plaintiff vide registered sale deed dated 27.01.1975. The plaintiff purchased another plot of land measuring 4 Ks 15 Ls from Abdul Baser, Son of Late Anser Ali. Although, Abdul Munnaf had purchased the land from Anser Ali, the land was not mutated in his favour. Since the name of Abdul Munnaf was not recorded in the record of rights, the plaintiff could not mutate his name in the record of rights. The land purchased by the plaintiff from Abdul Baser was, however, mutated in his favour. Taking advantage of non mutation of the suit land, the Widow and daughter of Late Abdul Baser, recorded their names in the record of rights on 27.12.1988. On 07.08.1995, the defendant Nos. 1 and 2 asked the plaintiff to vacate the suit land. Thereafter, the plaintiff came to know about the mutation of the names of the defendants and filed the suit.

(3.) BOTH sides adduced evidence. The learned Civil Judge (Junior Division) held that Anser Ali sold 2 bighas of land to Abdul Munnaf on 29.06.1964. The legal heirs of Munnaf again sold 1B 2K 10 Ls of land to Abdul Baser, S/o Late Anser Ali. Rest 2K 10 Ls of land belonging to Abdul Munnaf was sold to the plaintiff. The learned trial Court held that 2K 10 Ls of land was already sold to the plaintiff by the legal heirs of Abdul Munnaf on 27.01.1975. The name of defendant Nos. 1 and 2 was recorded in the record of rights on 27.12.1988 much later of the sale and therefore, mutation in favour of the defendant Nos. 1 & 2 was illegal. The learned trial Court also observed that the defendants failed to properly identify the suit land and they also failed to prove their possession over the suit land.