MOZIBAR RAHMAN Vs. BHANU NESSA AND ORS.

JUDGEMENT

(1.) Heard Ms. R. Choudhury, learned counsel for the appellants/defendant. Also heard Mr. M. Dutta, learned counsel for the respondent No.1/plaintiff.

(2.) This appeal by the defendant is preferred against the judgment and decree dated 15.12.2005 passed by the learned Civil Judge (Sr. Divn.), Barpeta in Title Appeal No.21/2004 dismissing the appeal and upholding the judgment and decree dated 17.05.2004 passed by the learned Civil Judge (Jr. Divn.), No.2, Barpeta in Title Suit No.85/2003, whereby the suit of the plaintiff was decreed.

(3.) The plaintiff is the only daughter of one late Tomez Ali. It is pleaded that land measuring 1 Bigha 19 1/2 Lecha out of 2 Bigha 1 Katha 19 Lecha in Dag No.92 of Patta No.10 of village Soulmari and land measuring 7 Bigha 2 Katha 2 Lecha under Dag No.647 covered by Periodic Patta No.134 of village Barbhita, more fully described in Schedule A and Schedule B, respectively, belonged to Tomez and the plaintiff is the only heir of deceased Tomez. The pleaded case is that the entire land of Schedule A measuring 2 Bigha 2 Katha 19 Lecha was sold by one Abdul Aziz to Magrab Ali and Tomez and after death of Magrab Ali, Fajal Hoque, his heir, who is arrayed as pro forma defendant No.2, had his name mutated in respect of share of land belonging to Magrab Ali. After death of Tomez, she was in possession of the suit land, both Schedule A and Schedule B, and on 01.06.1998, she could learn that the defendant had surreptitiously obtained mutation on 24.06.1976. She immediately filed a petition for cancellation of mutation. However, no action was taken by the Circle Officer, Kalgachia as mutation was granted more than three years before. On 02.09.1998, the defendant, without having any manner of right, title and interest over the suit land, dispossessed the plaintiff. The defendant, inspite of not being an heir of Tomez, obtained mutation by way of inheritance, though the Circle Officer, Kalgachia in his order dated 21.09.1998 in connection with Petition No.691/97-98 filed for mutation of Schedule A land by the defendant had noted that a gift deed being No.5850 dated 28.09.1967 was shown.