ABDUL MANNAN MAZUMDAR Vs. ALAUDDIN LASKAR

JUDGEMENT

(1.) This second appeal has been preferred by the appellant-plaintiff against the concurrent findings arrived at by both the Courts below dismissing the suit of the plaintiff-appellant.

(2.) The plaintiff filed a suit in the Court of learned Assistant District Judge No. 1, Cachar, Silchar praying for declaration or right, title and interest and recovery of khas possession of a plot of land measuring 11 kathas 7 chataks 8 gondas 2 koras and 2 krantis appertaining to various dags and bounded by different boundaries mentioned in the schedule to the plaint. According to the plaintiff, the suit land along with other lands originally belonged to one Raj Kishore Nath and his brother Sarat Chandra Nath, who transferred the land in favour of one Haidar Mia Mazumdar. Haidar died leaving behind five sons, namely, Abdul Mazid, Abdul Rehman, Abdul Hamid, Abdul Manafr and Abdul Khalek. Out of the aforesaid five sons of Haidar Mia, three sons, namely, Abdul Manaf, Amdul Mazid and Abdul Rehman transferred their shares in various dags and pattas in favour of Namar Ali. Namar Ali also purchased the share of Abdul Hamid, another son of Haidar Mia and thus, Namar Ali purchased the title of four sons of Hamid Ali leaving only one son, namely, Abdul Khalique. According to the plaintiff, Namar Ali being in possession of the land within definite boundaries sold the said land to him by a registered sale deed dated 14.9.1995(Ext.4) and handed over possession. Consequently, the plaintiff continued in enjoining the same until he was dispossessed by the defendant No. 1, namely, Alauddin Laskar. According to the plaintiff, there was a proceeding under Sec. 145 Crimial P.C. being Case No. 389 (M)/1995, but after the said proceeding was dropped, on 30.11.1995 the defendant dispossessed him and in the meantime, in collusion with the predecessor-in-interest of the proforma defendant executed a sale deed on 27.10.1995 with regard to the suit land. The said vendor Abdul Khalique, another son of Haidar Mia never owned or possessed the land in question. The plaintiff therefore, made a prayer that the said sale deed be declared void, illegal, inoperative and liable to be delivered up and cancelled. While proforma defendant did not contest the suit, the principal defendant No. 1 Alauddin Laskar submitted the written statement. The specific stand in the written statement of the said defendant is that in a particular dag, namely, dag No. 85, the vendor of the plaintiff had acquired only 13 kathas 8 chataks 12 gondas. It is curious to mention here that the land originally belonged to Raj Kishore Nath, who sold out to Haidar Mia and thereafter Haidar Mia sold it to Namar Ali who, in tern, sold his share to plaintiff. Similarly, one son of Haidar Mia transferred his title in favour of the contesting defendant No. 1. This transaction having taken placed over a long period of years, two successive settlement operations had been conducted during the intervening period and as such, Dag Nos. and Patta Nos. mentioned in various sale deeds virtually became confusing. Be that as it may, the Ext.4, sale deed by which the plaintiff claimed to have purchased the suit land measuring 11 kathas 7 chataks 8 gondas 2 koras 2 krantis contain recital of definite and specific boundaries. But the defendant did not mention as to whether the shares of five sons of Haidar Mia had title in other dags and as to whether there was at all any possession by metes and bounds corresponding to dags and pattas of the land in question; or as to whether amicable family settlement as claimed by the plaintiff in the plaint on the basis of possession was the based for enjoyment of land by heirs of Haidar Mia and sold to their respective vendees.

(3.) The learned trial Court on the basis of the aforesaid pleadings framed as many as nine Issues. Out of which Issue Nos.7 and 8 relate to devolution of title on the plaintiff and validity of sale deed of the defendant No. 1. The plaintiff examined altogether six witnesses and exhibited the sale deed in original including Ext.4, the document of title on the basis of which the suit had been filed. Defendants examined three witnesses and they also produced some documents including their deed of title. The trial Court hold that the suit for declaration of right, title and interest of the plaintiff is not maintainable because all other pattadars of the original patta were not made parties. In so doing, learned trial Court failed to note in its judgment the prayer portion of the suit for declaration of right, title and interest over the suit land and recovery of khas possession thereof from defendant No. 1, who is described to be a trespasser to the land. The learned trial Court observed in the judgment inter alia as follows:-