GAFFAR Vs. JAKRUN NESSA

JUDGEMENT

(1.) MUSST . Jakarun Nessa, the respondent in RSANo. 251/05 filed Title Suit No. 28/1993 against Md. Gaffar, the appellant in the said appeal, as defendant, as well as Musst. Noor Jahan Begum and Musst. Asmina Begum, as proforma defendants, in the Court of the learned Sadar Munsiff at Tezpur, praying for declaration of right, title and interest as well as for permanent injunction, in respect of the land measuring 3 Lechas covered by Periodic Patta No. 457/629(old)/211(new) under Dag No. 491/1160(old)/1173 (new) of Tezpur Town, Mouza -Mahabhairab, District -Sonitpur, contending inter alia that the land measuring 6 Lechas covered in the said Dags and Periodic Patta was initially purchased by Md. Gaffar, the appellant in the Second Appeal and Md. Sattar, the predecessor in interest of proforma defendant Nos. 2 and 3 and, thereafter, mere was an amicable partition between Md. Gaffar and Md. Sattar, who are the brothers. It has further been contended that after the death of Md. Sattar, the proforma defendant Nos. 2 and 3, being the wife and the daughter inherited the property, the share of Md. Sattar, i.e. 3. Leches of land, and the proforma defendant Nos. 2 and 3 executed a registered deed dated 30.05.1992 transferring the right and title over the said land of 3 Lechas in favour of Musst. Jakarun Nessa, the respondent herein. The respondent/plaintiff, therefore, claims the title over the said 3 Lechas of land by virtue of purchased by registered deed of sale. It has further been contended that as Md. Gaffar threatened the plaintiff to disposes from the land in question the suit has to be brought. Musst. Noor Jahan Begum and Musst. Asmina Begum, the proforma defendants did not contest the suit. However, the main defendant Md. Gaffar, who is the present appellant, filed the written statement denying the claim of the plaintiff in the plaint contending inter alia that the proforma defendant Nos. 2 and 3 being not the legal heirs of Md. Sattar had no right over the property and, therefore, no right and title can be conferred on the plaintiff by virtue of any sale made in her favour by the said proforma defendant Nos. 2 and 3.

(2.) ALTERNATIVELY , it has been contended that even if the proforma defendant Nos. 2 and 3 are the heirs of Md. Sattar they will not inherit the entire 3 Lechas of land belonging to Md. Sattar under the Mohammedan Law. The defendant No. 1/appellant herein further contended that out of 3 Lechas of Land Md. Sattar during his lifetime sold 3/4 Lechas of the land to one Shri Kashinath Singh and, therefore, only 21/4 Lechas of the land left in the share of Md. Sattar, however, there was no partition amongst the two brothers, namely Md. Gaffar and Md. Sattar.

(3.) THE learned Trial Court on the basis of the pleadings framed the following issues in Title Suit No. 28/1993: