SHYAMAL KANTI MALAKAR Vs. MONORANJAN DAS

JUDGEMENT

(1.) THIS second appeal is preferred against the judgment and decree dated 16.02.2006, passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 25/1997 dismissing the appeal and affirming the judgment and decree dated 31.03.1997, passed by the learned Civil Judge (Junior Division) No. 3, Karimganj in Title Suit No. 386/1981. The appeal is preferred by the legal representatives of defendant No. 2 in the suit.

(2.) BY way of preface, it may be indicated that plaintiff claims to have purchased a plot of land as described in Ext. 1, a sale deed executed by defendant No. 1 dated 11.04.1979. Defendant No. 2 is the brother of defendant No. 1. Defendant No. 2 claims to have purchased the suit land vide Ext. B dated 27.03.1978 from defendant No. 1.

(3.) IN the suit, it was pleaded that suit land as described in the schedule to the plaint was in possession of the defendant Nos. 1 and 2 by virtue of their purchase of tenancy rights. The defendants had amicably partitioned the aforesaid land and the suit land fell in the share of defendant No. 1. Out of the land falling in the share of defendant No. 1, one powa of land with the boundaries as described in the schedule was sold to the plaintiff by the defendant No. 1 and in such sale transaction, the defendant No. 2 had taken initiative. The sale deed (Ext. 1) was registered on 11.04.1979. Possession was not delivered to the plaintiff on the ground that the shares of the two brothers would be permanently demarcated and then possession would be delivered to the plaintiff. Subsequently, the defendant No. 2 disclosed that he had purchased the suit land earlier, and therefore, the defendant No. 1 had no title over the suit land. It was pleaded that defendant No. 2 never purchased the suit land and in any view of the matter, the sale deed was a collusive document by virtue of which, the defendant No. 2 is continuing in possession.