KHALILUR RAHMAN Vs. ALI AND OTHERS

JUDGEMENT

(1.) The present Second Appeal has been preferred against the first appellate judgment and decree dated 27.03.2003 passed by learned Civil Judge (Senior Division), Karimganj in Title Appeal No.28/1996 whereby the trial court judgment and decree of dismissal passed on 30.03.1996 by learned Civil Judge (Junior Division) No.1, Karimganj in Title Suit No.7/1990 has been reversed. The learned trial Court found the suit to be bad for non-joinder of necessary parties and also deficient in material particulars regarding claim of proprietary right or landholders' right of the plaintiffs. The first appellate Court reversed the findings and held that the plaintiffs succeeded to establish their right, title and interest and that settlement made in favour of the defendant No.1 on 09.04.1987 by the Government was not in accordance with law and consequently the settlement was cancelled. Against such judgment of reversal the Second Appeal has been admitted.

(2.) The brief facts involved in the Second Appeal are required to be stated first. Three respondents as plaintiffs instituted Title Suit No.7/1990 in the Court of learned Munsiff No.1 at Karimganj stating that Haji Mahmud Ali, Asaid Ali and Jamshed Ali along with other co-sharers had title and khas possession over the suit land. While enjoying the land by raising 'boro' paddy and harvesting fishes Haji Mahmud Ali, Asaid Ali and Jamshed Ali died. After their death their respective legal heirs held amicable settlement and thereupon plaintiff No.1, Akram Ali, being son of Late Haji Mahmud Ali, plaintiff No.2, Sayad Ali being son of Late Asaid Ali and plaintiff No.3, Siraj Uddin, being son of Late Jamshed Ali got the land described in the schedule to the plaint along with other land in their share while other co-sharers got their respective shares. Since before settlement operation the land described in the schedule to the plaint remained under possession and enjoyment of the plaintiffs and defendant No.1 had no right, title and interest thereto. Even then he managed to get settlement with respect to 8 bighas of land by order dated 09.04.1987 from the Government which is illegal and collusive. The land has not been correctly described as paddy land type and without giving any opportunity to the plaintiffs and others the same has been allotted to the defendant No.1. The land is still under the possession of the plaintiffs but they have been publicizing to take possession thereof. Under such circumstances the suit was instituted praying for a decree declaring that settlement made on 09.04.1987 in favour of the defendant No.1 is illegal, void and inoperative; that plaintiffs have hereditary right, title and interest with respect to 10 kedars of land described in schedule to the plaint by way of amicable partition as land holder; and for injunction restraining the defendants from disturbing peaceful possession of the plaintiffs over the suit land. In the schedule of the plaint it is mentioned that the suit land is covered Decennial Taluk of Hurmat Khan, Durlab Khan and Sheikh Sina and others under Umarpur Mouza of Chapghat Phargana.

(3.) On being summoned the defendant No.1 appeared and submitted written statement denying the case of the plaintiffs, inter alia, on the ground of maintainability as well as on merit. According to the defendant No.1, the suit is bad for non-joinder of necessary parties as legal heirs of deceased sons and one live son of Mahmud Ali and legal heirs of Asaid Ali and Jamshed Ali have not been made party. Amraj Ali, Abdul Latif, Rois Ali, Abdul Hussain, Hasan Ali and Aftar Ali being the legal heirs of the original alleged pattadars they are necessary party to the suit. Defendant No.1 denied continuous possession of the plaintiffs over the suit land and he had been possessing the land adversely and without interruption for a period beyond the period of limitation and he being an ex-serviceman made a prayer before the Government for settlement in his favour. Accordingly, the settlement has been made in his favour on 09.04.1987. The suit of the plaintiffs, therefore, is liable to be dismissed with cost.