RAKIB ALI Vs. LATIB ALI

JUDGEMENT

(1.) Plaintiffs of Title Suit No.152/1991 have preferred this Second Appeal challenging the appellate judgment of reversal passed on 22.12.04 by Adhoc Additional District Judge, Karimganj, in Title Appeal No. 15/2004. By that judgment the learned Adhoc Additional District Judge allowed the appeal and set aside the judgment and decree dated 01.02.02 passed by learned Civil Judge (Junior Division) No.2, Karimganj in Title Suit No. 152/1991.

(2.) A brief narration of facts involved in the case is necessary for the purpose of adjudicating this Second Appeal. Present appellants as plaintiffs instituted Title Suit No.152/1991 in the Court of learned Munsiff at Karimganj against one LATIB ALI, their brother, praying for declaration that they acquired landholders' right over the suit land by inheritance and they are entitled to a decree of perfect partition along with other prayers. It is stated by the plaintiffs in the plaint that land measuring 1 kedar 3 jostis covered by decennial estate No.14779/90 Abjol and settlement khatian No. 599 dag No.220 of pargana-Kushiarkul under mouza - Karimganj Town was recorded in the name of Sheikh Rashid as raiyot. The plaintiffs and the defendant No.1 being legal heirs of Sheikh Rashid, who died in 1954, was requested for amicable partition of the land to which the latter did not pay any heed. He rather became ready to transfer his share to others. Under such compelling circumstances the suit was instituted for declaration of landholders' right to the extent of their respective shares and for a decree of perfect partition with necessary direction to the Collector. They also made a prayer for permanent injunction.

(3.) On being summoned, the defendant No.1 did not appear and did not file any written statement but one Nitya Bhusan Das appeared and filed an application under Order I Rule 10(2) of the Code of Civil Procedure praying for being impleaded as defendant No.2 in the suit. According to the intervener, he had substantive right, title and interest to the suit land which he had acquired by way of exchange from one Oir Ali who on turn had acquired from original owner and the original owner had perfected his title over the suit land against the plaintiffs in Title Suit No. 107/1966. The learned Court allowed the prayer for being impleaded and accordingly the defendant No.2 submitted a written statement on 13.02.1992. Apart from denying the averments made in the plaint, the defendant No.2 furnished his own facts in paragraph 15 of the written statement. According to this defendant, the suit land along with other lands was owned by Md. Azizur Rahman Chou-dhury as landlord. He had instituted Title Suit No.107/1966 in the Court of learned Munsiff at Karimganj against the present plaintiffs and others praying, inter alia, for declaration of his right and title over the suit land along other lands and for possession. The suit was ultimately compromised between the parties vide Sulenama dated 09.08.1966 whereby the plaintiffs of the present suit admitted title of the original mirashdar over the suit land described in Dag No.2 of the schedule of that plaint in Title Suit No.107/1966 and handed over possession. A final decree was ultimately passed on the basis of the sulenama on 9.8.66 of which the sulenama (compromise petition) was a part. This Azizur Rahman Choudhury being owner in possession of the suit land continued the same till his death but as he died issueless the suit property vested on Rabeya Khatun Choudhury (his sister), Abdulla Choudhury (son of own uncle) and Khalil Uddin Choudhury, his brother. This Rabeya Khatun gifted her share in favour of one Oir Ali, son of Late Muslim Ali, vide registered deed of gift No.668 of 1969 whereas Abdulla Choudhury and Khalil Uddin Chou-dhury sold their shares in the suit land to same Oir Ali vide registered sale deed No.636/69. The legal heirs of Azizur Rahman Choudhury thus handed over possession of 1 kedar 3 jostis of land under the taluk (permanently settled estate) to Oir Ali who on turn by executing a registered exchange deed No. 1563/71 dated 20.02.1971 handed over possession of the land to the answering defendant No.2. According to the defendant No.2, he having acquired title of Azizur Rahman Choudhury over 1 kedar 3 jostis of land in the concerned taluk vide Exhibi-H on 20.02.1971 from Oir Ali he stepped into the shoe of Azizur Rahman Choudhury, the sole plaintiff in Title Suit No.107/1966 and thus the subsequent Title Suit No.152/1991 was barred by res judicata. He accordingly prayed that suit of the plaintiffs be dismissed.