ABDUL MATIN AND ORS. Vs. ABDUL FATTAH

JUDGEMENT

(1.) This Second Appeal has been preferred against the judgment dated 07.07.2004 passed by learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 9/2001 dismissing the appeal and affirming the judgment and decree dated 21.12.2000 passed in Title Suit No. 58/1996 by the Civil Judge (Junior Division) No. 2, Karimganj.

(2.) The case of the plaintiff, as set out in the plaint, is that the plaintiff had purchased land measuring 1 (one) josthi described in 1st Schedule to the plaint from the defendant No. 2 vide registered sale deed dated 28.03.1988 pursuant whereto he was put in possession of the purchased land. The plaintiff has been continuing his business on the house standing upon the suit land and he has been paying house tax to the Gaon Panchayat. The defendant No. 2 sold land measuring one josthi in the south of the suit 1st Schedule land to one Asaddar Ali vide registered sale deed dated 04.05.1988 pursuant whereto Asaddar Ali constructed a shop in his purchased land wherein Niaj Ali, brother of Asaddar Ali is doing business. It is the case of the plaintiff that the defendant No. 2 had actually sold land of dag No. 575 under Khatian No. 71 of mouza Bakharsal Part-II but wrongly mentioned dag No. 621 in the sale deed. The plaintiff further averred that the defendant No. 2 had sold another plot of land to the adjacent north and east of his earlier sold land to one Abu Saleh Fakaruddin by a registered deed dated 14.02.1989 and delivered him possession of the same. In the said sale deed the defendant No. 2 had mentioned about the aforementioned two josthis of land which he had sold earlier which resembles the 1st Schedule land insofar as the description of the boundaries are concerned. The plaintiff alleges that although the plots of land sold by the aforesaid three deeds pertain to dag No. 575 of the final Khatian No. 71 of mouza Bakharsal Part-II yet the defendant No. 2 erroneously mentioned dag No. 621 in the sale deed, although the boundaries of the land sold by the defendant No. 2 remain correct and consistent with the actual possession of the land in the field. The defendant No. 2 had also handed over possession of the land covered by dag No. 575 at the time of executing the sale deed. However, recently the plaintiff came to know that in his purchase deed as well as the purchase deed of Asaddar Ali the dag No. has been wrongly mentioned as 621 instead of 575. Although the defendant No. 2 had corrected the sale deed of Asaddar Ali by correction deed dated 01.02.1993 bearing No. 366 such request made by him to the defendant No. 2 for rectification of the sale deed has been turned down by his vendor. The plaintiff alleges that the defendant No. 1 is the son of defendant No. 2 and the defendant No. 3 is the brother of the defendant No. 2. Taking advantage of the wrong mention of dag No. 621 instead of dag No. 575 in the sale deed of the plaintiff the defendant No. 2 had created a false and collusive document dated 23.5.94 in respect of the land in dag No. 575 in favour of defendant No. 3 behind the back of the plaintiff in a most illegal manner and the said document was registered as deed No. 2139. The plaintiff came to know about the said deed only on 08.02.1996 after obtaining a copy of the said deed from the office of the Sub Registrar. The plaintiff further pleaded that the defendants are persons of desperate nature and on 15.01.1996 they entered the shop house of the plaintiff by breaking open the lock of the same and removed all articles therefrom and had thus dispossessed the plaintiff from the suit land and the house. The aforesaid illegal action of the defendants had compelled the plaintiff to institute the present suit praying for a decree of declaration to the effect that the plaintiff is the owner and possessor of the land of Schedule-I and house mentioned in Schedule-II and for a decree of recovery of khas possession by evicting the defendants. The plaintiff has also prayed for a decree of correction of deed No. 969 dated 23.8.88 executed by the defendant No. 2 in favour of the plaintiff by mentioning dag No. 575 in place of dag No. 621; for a declaration that deed No. 2139 dated 23.5.94 is illegal, null and void; for permanent and temporary injunction and for other consequential reliefs.

(3.) The defendant Nos. 1, 2 and 3 contested the suit filed by the plaintiff by submitting their written statement questioning the maintainability of the suit itself. Besides taking the formal objections regarding existence of cause of action, non-joinder of necessary parties, suit being barred by waiver, estoppel and acquiescence and limitations etc., the contesting defendants took a pleaded stand that the defendant No. 2 being the original owner of the suit land constructed a house thereon and started a business in the said house with the knowledge of all concerned including the plaintiff. The business of the defendant No. 2 having failed and the said defendant being in urgent need of money, decided to sell the suit schedule land and the house standing thereupon and the defendant No. 3 having agreed to purchase the same, the same was sold to the defendant No. 3 by executing a registered sale deed for an amount of Rs. 7000/-. After purchase of the land in the 1st schedule the defendant No. 3 renovated the house standing thereon with the knowledge of all concerned. The defendant Nos. 2 and 3 have been living separately since past many years and that the defendant No. 3 has been maintaining his right, title, interest and possession over the suit land peacefully with the knowledge of all and without any disturbance from any individual. It is also the pleaded stand of the defendants that the plaintiff is a dangerous person having an evil mind and that the plaintiff was jealous with the defendants. Therefore, the plaintiff had ganged up with certain miscreants with a view to gain title and possession over the suit land and the house standing thereon and with that end in view filed the instant suit with the sole objective of making wrongful gain at the cost of the defendants. The defendants, therefore, prayed that the suit be dismissed with a compensatory cost.