ABDUL NOOR AND ORS. Vs. ISMAIL ALI

JUDGEMENT

(1.) The plaintiff's case is that Schedule -A land belonged to his father Md. Tayab Ali and after his death the plaintiff became the owner of the land based on an amicable partition amongst the other co -owners, namely, Moriom Bibi, Misira Bibi, Sitai Bibi who were the surviving sisters of late Tayab Ali. As per the family settlement the plaintiff became the owner of Schedule -II land which is a part of Schedule -I land. It is also the case of the plaintiff that the defendant No. 1 had purchased a plot of land from the father of the plaintiff as well as the surviving sisters as named above on the western part of the Schedule -I land by means of registered deed of sale i.e. Ext -7/Ext -C pursuant to which he has been continuing in possession of the said plot of land. The plaintiff had allowed the defendant No. 1 to occupy the Schedule -II land. At that time the plaintiff was doing business outside the area of Badarpur Police Station and in view of the relationship between the parties the defendant No. 1 had temporarily resided in the Schedule -II land on condition that he would vacate the same as and when required by the plaintiff. But later on, when the plaintiff had requested the defendant No. 1 to vacate the land he had refused to do so and as such the plaintiff had filed the instant suit for declaration of his right, title and interest in respect of the Schedule -II land and also for recovery of possession in respect thereof by evicting the defendant No. 1 and the remaining defendants from the said plot of land. The defendant No. 1, 2 and 3 contested the suit by filing written statement whereby they have pleaded that the Schedule -I land originally belonged to Abdul Mia who had died leaving behind one son and four daughters, namely, Md. Tayab Ali (father of the plaintiff), Asira Bibi (mother of the defendant No. 1), Morioma Bibi, Misira Bibi and Sitai Bibi. After the death of Abdul Mia the suit land was amicably partitioned amongst his aforementioned legal heirs and as per the said partition eastern part of the land described in Schedule -I fell in the share of Asira Bibi. The remaining part of the land on the western side described in Schedule -I had been purchased by the defendant No. 1 from Tayab Ali and the other co -sharers in the year 1964. But since the defendant No. 1 is an uneducated person, hence, taking advantage of the same Md. Tayab Ali had fraudulently shown the eastern boundary of the purchased land of the defendant No. 1 as the land of plaintiff Ismail Ali in the registered deed of sale. The defendant No. 1 had filed a counter -claim for correction of the said boundary of the sale deed No. 992 dated 07.04.1964. The defendants have also denied that the defendant No. 1 was ever a licensee under the plaintiff and claimed that the entire Schedule -I land belongs to the defendant No. 1, the western part by virtue of the purchase and the eastern part on the basis of inheritance from his mother Asira Bibi.

(2.) The plaintiff had filed written statement against the counter -claim questioning the maintainability of the same. While denying the averments made in the counter -claim the plaintiff had further stated that the mother of defendant No. 1, Asira Bibi, died before the death of Abdul Mia and as such, Asira Bibi never inherited any land from Abdul Mia. On such basis the plaintiff prayed for dismissal of the counter -claim with cost.

(3.) Based on the pleadings of the parties, the learned trial Court had framed the following issues: -