ABDUL RAJAK CHOUDHURY Vs. MOINUL HAQUE CHOUDHURY

JUDGEMENT

(1.) Heard Ms. B. Devi, learned counsel appearing for the appellants/ defendants and Mr. SK Ghosh, learned counsel, appearing for the respondents/ plaintiffs.

(2.) The present appellants are the defendants in T.S. No. 9/2003 in the court of the learned Civil Judge (Junior Division), No. 1, Hailakandi, which was filed by the present plaintiffs/ respondents. The case of the plaintiffs/ respondents is that the plaintiffs and the proforma defendant No. 111 in T.S. No. 9/03 instituted T.S. No. 97/1970 in the court of the learned Munsiff, Hailakandi against the present defendants/ appellants with a prayer for declaration of the right, title and interest and khas possession in respect of the suit land in dispute in T.S. No. 9/2003. During the pendency of the suit the proforma defendant No. 111 sold out his share of interest to the plaintiff/ respondent Nos. 1 and 2. The said T.S. No.97/1970 was decreed by the learned trial court and on appeal the said decree was confirmed by the first appellate court. Second Appeal No. 110/78 was preferred before this court wherein the judgment and decree passed by the trial court in T.S. No. 97/70 and affirmed by the first appellate court was upheld by this court with a modification declaring the right, title and interest over the suit land in favour of the present plaintiffs/ respondents with a further direction that the possession of the plaintiffs/ respondents are ejmali (joint) alongwith other co-pattadars (co-owners) including the defendants/ appellants in the said T.S. No. 97/70.

(3.) The plaintiffs/ appellants got the said decree executed vide execution case No. 13/99. Later on the plaintiffs/ respondents applied for partition of the decreetal land before the Collector, Hailakandi vide Misc. case No. 5/2002 which was rejected. Thereafter the present T.S. No. 9/03 was filed by the present plaintiffs/ respondents for partition of the suit land.