BAHADUR ALI Vs. OMED ALI

JUDGEMENT

(1.) THIS second appeal is preferred by the plaintiffs against the appellate judgment of reversal passed by the learned Civil Judge (Sr. Division), Barpeta on 16.02.2002 in Title Appeal No. 10/2001 thereby allowing the appeal and modifying the trial Court's decree dated 09.01.2001 passed by the learned Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 17 of 1998. The learned trial Court had partly allowed the suit of the plaintiffs as well as the counter claim filed by the defendants.

(2.) THE pleaded case of the plaintiffs is that land measuring 3 bighas 3 kathas 16 lechas covered by annual Dag No. 391 (1 bigha 2 kathas) and periodic Dag No. 211 (2 bighas 1 katha 16 lechas) of village Bonbahar originally belonged to the plaintiffs and the proforma defendant Badiurzaman. Plaintiffs No. 1 & 2, namely, Bahadur Ali and Samsul Haque and the original proforma defendant, namely, Late Badiurzaman were brothers. They jointly owned the land in question under Patta No. 15 of Mouza Betbari in village Bonbahar. But on 22.01.1998, defendant No. 1 (Omed Ali) and defendant No. 2 (Somed Ali) sought to create obstruction to them in enjoyment of their fishery situated over the suit land claiming that they had obtained a mutation with respect to the said land and also asked the plaintiffs to vacate the same. Faced with such threat of dispossession, the plaintiffs made enquiry with the settlement office as to the records of rights only to discover that on 12.8.1981 three mutation orders had been passed by the Revenue Officer and thereby 4 kathas of land belonging to the plaintiffs under Dag No. 211 of the said patta was wrongly recorded in the name of the defendant No. 3 whereas 2 kathas 10 lechas of land of the same dag was recorded in the name of Somed Ali. By another order of the same date the revenue officers recorded names of Omed Ali and Baharjan Nesa with respect to 15 lechas of land. According to the plaintiffs they never sold any land under Dag No. 211 to any of the defendants and as such in view of the aforesaid erroneous endorsement in the records of rights their title got clouded. The plaintiffs, therefore, prayed that a decree be passed declaring their right, title and interest over the suit land and also for confirmation of possession. Prayer has also been made for adjudication and declaring the said mutational entry as illegal inoperative and void and, of course, for delivery of khas possession if the plaintiffs are really dispossessed from the suit land during pendency of the suit.

(3.) ON the basis of the aforesaid pleadings of the parties the learned trial Court framed as many as 11 issues and the same are quoted below: