MD. SABUL HUSSAIN, S/O. LATE MIACHAN Vs. MD. ABDUL JALIL MIAH, SON OF LATE MIACHAN FAKIR, NO.2 BUNBAHARGAON, MOUZA

JUDGEMENT

(1.) This second appeal is directed against the judgment of reversal passed on 30.06.2005 by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 27 of 2004 thereby decreeing the suit of the plaintiff setting aside the trial Court's judgment and decree dated 11.06.2004 passed by the learned Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 105/2002. This second appeal is at the instance of the contesting defendants No. 1 to 4.

(2.) Md. Abdul Jalil Miah as plaintiff instituted Title Suit No. 105/2002 in the Court of learned Civil Judge (Junior Division) No.1 at Barpeta praying for declaration of his right, title and interest, confirmation of possession and prohibitory injunction restraining the principal defendants from dispossessing the plaintiff from the suit land. According to the plaintiff, land measuring 2 bighas out of two dags, namely, Dag No. 9 and Dag No. 11 of Periodic Patta No. 177 covered by Betbari Mouza in the District of Barpeta originally belonged to one Nawshad Ali who by executing a valid registered sale deed on 13.03.1962 transferred it jointly in favour of the plaintiff and the Proforma Defendant (Niamuddin Mia). Subsequently plaintiff amicably partitioned the land with Proforma Defendant and got his 1 bigha of land separated. The plaintiff claimed that pursuant to the aforesaid purchase and possession he obtained mutation in the records of rights. It is the case of the plaintiff that although defendants No. 1 to 4 did not have any semblance of right, title and interest to the land in question yet by filing a Misc. Case being MC 223/2001-02 before Settlement Officer of Barpeta prayed for mutation in their name with respect to those land. According to the plaintiff, issuance of notice on 20.05.2002 on such prayer of the Principal Defendants, praying for mutation of the suit land clouded his title and it was under such circumstances filing of the suit became necessary. The plaintiff prayed, therefore, that a decree be passed declaring his right, title and interest and confirmation of possession over the suit land on the basis of aforesaid purchase made on 13.03.1962 and consequentially prohibitory injunction restraining the principal defendants from dispossessing the plaintiff from the suit land. The Proforma Defendant (Niamuddin Mia) who was the joint purchaser of the suit land though served with notice, did not appear and contest the claim of the plaintiff. The Principal Defendants No. 1 to 4, however, by filing a joint written statement took a stand at paragraph 6 thereafter that the suit land was purchased in the name of the plaintiff and Proforma Defendant (Niamuddin Mia) but the money for 1 bigha of land out of the aforesaid 2 bighas was paid from the joint fund of the family consisting of the plaintiff and the Principal Defendants No. 1 to 4. Under such circumstances, plaintiff alone is not entitled to get declaration of title to the suit land.

(3.) Learned trial Court upon pleadings of the parties framed as many as six issues and the same are quoted below: