ABDUL HUSSAIN Vs. ANWARUL HUSSAIN AND ORS.

JUDGEMENT

(1.) THIS Second Appeal has been preferred against the judgment and decree dated 24.10.2011 passed by the learned Civil Judge, Dhubri in Title Appeal No. 6/2009 dismissing the appeal thereby affirming the judgment and decree dated 29.11.2008 passed by the learned Munsiff No. 1, Dhubri in Title Suit No. 96/2000.

(2.) THE brief facts of the case, as set out in the plaint, is that Amina Khatun Bewa, the deceased mother of the plaintiff and the defendant Nos. 1, 2 and 3, had a plot of land measuring 15 L covered by tenancy khatian No. 517 pertaining to dag No. 776 under landlord khatian No. 516 situated at Bidyapara, Ward No. 10, Dhubri Town in the district of Dhubri as her homestead land. During her lifetime, Amina Khatun gave away land measuring 1 3/4 L for the purpose of a passage over the northern part from her aforesaid 15 L of land as a result of which land measuring 13 1/4 L remained under her ownership and occupation as her homestead land. The said plot of land was subsequently recorded under dag No. 3172/473, PP No. 1444 in Bidyapara Ward No. 10, Dhubri Town which has been described in Schedule -A to the plaint. Amina Bewa was initially married to Mortab Ali and out of the said wedlock she gave birth to two daughters i.e. defendant Nos. 2 and 3 and one son i.e. defendant No. 1 through her first husband Mortab Ali. After the death of Mortab Ali, who died sometime in the year 1948, Amina Khatun remarried Ramizuddin and from the side of her second husband the plaintiff was born as the lone child. It is the case of the plaintiff that the land described in Schedule -A to the plaint was the self acquired property of Amina Khatun and therefore, after her death as per the law of inheritance under the Mohammedan Law, the plaintiff and the defendant No. 1 being the sons of the deceased Amina Khatun would be entitled to 1/3rd share in the Schedule -A land each whereas the defendant Nos. 2 and 3 being the daughters would get 1/6th share each out of the property left behind by Amina Khatun. Therefore, as per the dicta of Mohammedan Ali, as aforesaid, the plaintiff would be entitled to 4 5/12 L of land as his share out of the Schedule -A land which has been described in Schedule -B to the plaint. Certain disputes and differences having arisen amongst the parties regarding management and possession of the properties an approach was made by the plaintiff to the Settlement Officer, Dhubri by filing a mutation case and by order dated 14.07.1999 passed in M.A. No. 2/99 the learned Settlement Officer, Dhubri directed the parties to have their claims adjudicated before the Civil Court. In the meantime, the plaintiff had approached the defendants for amicable partition of their shares in respect of the land left behind by Amina Khatun. However, instead of agreeing to such proposal the defendants have threatened to dispossess the plaintiff by demolishing the house standing thereon as a result of which the plaintiff had been compelled to institute Title Suit No. 96/2000 in the Court of Munsiff No. 1, Dhubri praying for a declaration of this title and share in respect of the Schedule -B land and also for a decree of permanent injunction.

(3.) ON the basis of the pleadings of the parties the learned trial Court had framed as many as 24 issues which are as follows: -