KAMLESWAR RAJBONGSHI Vs. GUNESWAR RAJBONGSHI AND OTHERS

JUDGEMENT

(1.) This is an application under section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure has been filed by the respondent in RSA No. 144 of 2009 praying for review of the Judgment and order dated 24.2.2012 passed by Hon'ble Mr. Justice I.A . Ansari in the aforesaid second appeal. In view of His Lordship's transfer from this court, the Hon'ble Chief Justice allotted the review petition to this court and accordingly the same has been taken up for hearing.

(2.) I have heard Mr. SP Roy, learned counsel for the review petitioner and Mr. SS Dey, learned senior counsel assisted by Mr. M Nath for the respondents in the review petition.

(3.) The respondents in the present review petition, as plaintiffs , instituted Title Suit No. 306/2002 in the court of learned Civil Judge (Sr. Div.No.3) Kamrup at Guwahati against the present review petitioner as principal defendant No.1 and three others as proforma defendants. It was the pleaded case of the plaintiff that suit property originally belonged to late Rabiram Sarania who died leaving behind two sons Balaram Sarania (since deceased) and Satara Sarania (since deceased). Balaram died leaving behind two sons, namely, Mahandra Rajbongshi @ Sarania (since deceased) and Kamaleshwar Rajbongshi @ Sarania. Satara died leaving behind two sons Gunadhar and Guneswar (plaintiff No.2) whereas Mahendra died leaving behind Birendra (Plaintiff No.1), Dhireswar and Ramesh as his legal heirs. According to plaintiffs since Satara was simple, Balaram got his name mutated against the entire property after death of Rabiram although the two brothers lived jointly all along and enjoyed the property together. Even plaintiff No.1 noticed during his boyhood that his father Mahendra, Satara the father of the plaintiff No.2 and Kamaleswar (the defendant No.1) all lived together and cultivated the ancestral land jointly. They used to divide the agricultural produce in equal share and thus the agricultural land left behind by Rabiram Sarania still remains a joint property in the hands of his successor. Plaintiffs being lineal descendants of the original owner Rabiram are copercanars of the property and have their rights involved in it. The plaintiffs came to know on 30.11.2002 that one Kishore Patwary entered into agreement for sale with defendant No.1 with respect of 2 Bighas of the aforesaid land and so they along with the proforma defendants have become aggrieved. According to them, suit property still remains unpartitioned and all the successors of the original owner, Rabiram Rajbongshi have joint right, title and interest thereto. The plaintiffs therefore prayed for a decree for declaration that suit property described in Schedule-A to the plaint is a Hindu copercanary property and that all parties to the suit are copercenars. Plaintiffs also prayed for a decree of permanent injunction for restraining the defendant No..1 from transferring any part of the suit land in any manner to any stranger and or to deliver possession.