JAMSHER ALI MANDAL Vs. MAKSED ALI (MD.)

JUDGEMENT

(1.) Heard Mr. N Dhar, learned counsel appearing on behalf of the appellants/ defendant and Mr. N Haque, learned counsel appearing on behalf of the respondents / plaintiff.

(2.) Brief facts of the case of the plaintiff/ respondents is that a plot of land measuring 5 B 1 K 6 Ls covered by annual patta under Dag Nos. 262, 264 and 265 described in Schedule A of the plaint out of which 2 B 2 K 10 Ls described in Schedule B of the plaint is the suit land. The land described in Schedule A of the plaint belonged to the plaintiff and the pro-forma defendants and another brother Nur Mohammad and all the three brothers enjoyed the land by constructing their residential houses. The land was mutated in their names. Nur Mohammad, the brother of the plaintiff and the proforma defendant died three years ago without leaving any legal heirs except the plaintiff and proforma defendant, Md. Ahad Bux. After the death of Nur Moham-mad, the plaintiff and the proforma defendant got right, title and interest and possession over the land. On 31.03.1981 and 05.02.1996 the defendants by misleading the Revenue Authority mutated the B Schedule land measuring 2B 2K 10Ls in their names. The defendant/ appellants are not related to the plaintiff/ respondents and the proforma defendant Md. Ahad Bux. On 15.11.1993 the defendant/ appellants forcefully dispossessed the plaintiff/ respondents and the proforma defendant and thereafter they requested the defendants to deliver the vacant possession of the suit land. But on 31.08.1996, the defendants expressed that they would never vacate the suit land. Hence, the plaintiff/ respondents preferred the suit for declaration of their right, title and interest and to deliver the khas possession of the land to them by evicting the defendant/ appellants there-from and also to cancel the illegal mutation standing in the names of the defendant/ appellants and to issue precept to correct the revenue records.

(3.) The defendant/ appellants contested the suit by filing their joint written statement wherein it was pleaded that there was no cause of action for the suit which is barred by the law of limitation and the suit is bad for non-joinder of necessary parties and accordingly denied the averments made by the plaintiff respondents in the plaint. The case of the defendant appellants is that the land formerly belonged to Nur Mohammad and one Karim Bux who were the brothers as well as the pattadars of the suit land. Nur Mohammad left his share from A Schedule land to his brother Karim Bux and went to Bangladesh. The pattadar Karim Bux relinquished his right over the suit land putting signatures in the Chitha Book of the Lat Mandal. Accordingly, the suit land was mutated in the name of Jamsher Ali, the defendant appellant No. 1. On 05.02.1996, the Revenue Authority of Barpeta allowed mutation of the suit land in place of Nur Mohammad in the name of Chand Mia (the defendant No. 2), son of defendant No. 1, Jamsher Ali. Though the defendant appellants have obtained the mutation irregularly, yet they are recognised as pattadar of the suit land by the Revenue Department at present and as such the defendant appellants became the settlement holder other than the land holder. The right, title and interest and occupation of the defendant appellants accrued over the suit land as they are paying the land revenue of the suit land. the plaintiff respondents are not in possession over the suit land and the suit land is annual patta land. Accordingly, the defendant appellants cannot claim any right over it as because the Government of Assam is the real owner of the suit land and as such the