IDRISH ALI Vs. HASSEN ALI

JUDGEMENT

(1.) Plaintiff of Title Suit No.47/1995 has preferred this Second Appeal challenging the judgment and decree of reversal dated 11.07.2006 passed by learned Civil Judge (Senior Division), Nagaon, in Title Appeal No.15/2002. The learned Civil Judge (Junior Division) No.2, Nagaon decreed Title Suit No.47/1995 on 11.07.2002 in part. The plaintiff did not challenge the judgment passed by the learned trial Court but the defendants did. The appellate Court dismissed the suit of the plaintiff in entirety and this is how the plaintiff has approached this Court by invoking second appellate jurisdiction.

(2.) The present appellant as plaintiff instituted Title Suit No.47/1995 in the Court of learned Munsiff No.1, Nagaon, stating that land measuring 14B 1K 17L pertaining to PP No.148 was originally owned by his predecessor Ismaijl Ali and one Kasem Ali. Upon amicable partition between the original pattadars, Ismail Ali became absolute owner in possession of 7B 18 - L. During 1930-31 settlement operation land covered by PP No.111 and 117 was comprised in one periodic patta, namely, PP No.148 comprising 14B 1K 17L. But subsequently in 1968-69 settlement operation, aforesaid PP No.148 and Dag No.289 was resurveyed into two pattas, namely, PP No.111 and PP No.117. PP No.111 and dag No.568 comprised of land measuring 8B 10L whereas PP No.117 and Dag No.561 comprised 6B 1K 7L. Out of the aforesaid land Ismail Ali made sale in favour of one Khurshed Ali and Hussain Ali and upon such sale having been made he was left with 2B 4K 5L in PP No.111 and 2B 2K 8 - L in PP No.117. Thus, Ismail Ali retained 5B 1K 13 - L in the aforesaid two pattas. Ismail Ali was predecessor in interest of the plaintiffs and the proforma defendants No.18 to 21. He having died about 18 years prior to institution of the suit the aforesaid property left behind by him was inherited by the plaintiffs and proforma defendants No.18 to 21 and they were peacefully enjoying the property by cultivation of different crops and constructing thatched houses thereon. Taking opportunity of the absence of the plaintiffs the defendants in collusion with revenue staff first got the names of the plaintiffs struck out from both the dags on 16.07.1993 and thereafter dispossessed them from the suit land measuring 5B 1K 13 - Ls described in Schedule-A to the plaint on 13.08.1993. The defendant No.5 also made a katcha house over the schedule land. Having come to know about the same the plaintiff came back from his place of employment and asked the defendants to vacate the suit land on 14.08.1993 to which the defendants refused, rather threatened with dire consequences. This is how the right, title and interest of the plaintiffs over the suit land got clouded and hence necessity for institution of the suit for declaration of right, title and interest and recovery of khas possession arose. Plaintiffs also made a prayer for permanent injunction along with a decree for precept directing the revenue authorities to correct the revenue records.

(3.) On being summoned the defendants No.1, 2, 3 and 4 only appeared and submitted a written statement. The other principal defendants and the proforma defendants did not appear even after service of summons and so the suit proceeded ex parte against them. The defendants No.1 to 4 in their joint written statement denied the case of the plaintiffs in entirety and claimed to have purchased the suit land from various owners. According to the contesting defendants, Ismail Ali had transferred his entire title in the suit pattas and so he did not have any right, title or interest left in the aforesaid two pattas. In paragraph 16 of the written statement the defendants stated that the defendant No.1 purchased 3B 4K 9Ls of land from suit pattas by registered sale deed from Abdul Matalib alias Mata Seikh. One Khurshed Ali purchased 1B 1K of land from Mata Seikh and defendant No.1 vide deed dated 05.01.1971 purchased this 1B 1K land of PP No.111 from said Khurshed Ali and obtained possession of the said land. This sale deed was subsequently corrected by deed No.3325/93. Similarly, Hussain Ali purchased land from the suit patta by five more sale deeds executed by Abdul Matalib alias Mata Seikh vide deeds dated 10.01.1969, 04.02.1970, 26.10.1973, 22.02.1974 and 15.05.1974 and Abdul Matalib delivered possession of the land to him on the date of execution of the sale deeds and thus defendant No.1 became owner of 3B 4K 9L of land covered by the two pattas. Defendant No.2 similarly purchased another 3B 4K 9Ls of land from the suit pattas by registered sale deeds and came into possession from the date of execution of the sale deeds. Ismail Ali, the predecessor-in-interest of the plaintiffs and the proforma defendants, sold 1B 1K land from PP No.111 to defendant No.2 vide registered sale deed dated 07.03.1973. Defendant No.2 having purchased 2B 2K 15Ls land of suit pattas from Khurshed Ali on 05.01.1971 came in possession of the land and Khurshed Ali on turn had purchased 1B 5L land from Ismail Ali and 1B 2K 10Ls land from Sabdul Khan. This 1B 2K 10Ls originally belonged to Ismail Ali who sold it to one Jamir Moral who on turn sold it to one Miraj Ali and thereafter Miraj Ali sold it to Mansur Ali. Mansur Ali sold it to Sabdul Khan and Sabdul Khan sold it to Khurshed Ali and ultimately Khurshed Ali sold to defendant No.2. This is how defendant No.2 became owner of 3B 3K 15Ls of land and was enjoying the same. The defendant No.3 purchased 4B 5 Ls of land from suit patta. Ismail Ali also sold 3K 13Ls to one Abdul Majid and Abdur Rahim from PP No.111 and dag No.560 and this Abdul Majid and Abdur Rahim sold 3K 13L land on 01.03.1974 to defendant No.3 and delivered possession. Mustt. Sarbanu purchased 12L of land from Abdur Rahim and then sold it to defendant No.3 and thus name of defendant No.3 was duly mutated in the records of rights. He was also in possession of 4K 5Ls of land since the date of purchase. Defendant No.4 purchased land from Sahar Banu who had inherited it from Abdul Matlib alias Mata Seikh and defendant No.15 Abdul Kuddus purchased 12 - Ls of land from PP No.111 from Abdul Karim who had purchased it from Ismail Ali. Thus, the entire suit land was purchased by defendant Nos.1,2, 3, 4, 7 and 15. With these averments of facts the defendants urged that the suit of the plaintiffs be dismissed with cost.