MOZAMMEL HAQUE Vs. HALIM UDDIN AHMED

JUDGEMENT

(1.) Heard Mr.N.Dhar, learned counsel appearing on behalf of the appellants alongwith Mr.B.Hussain and Mr.T.U.Laskar. Also heard Mr.S.K.Ghosh, learned counsel appearing for the respondents.

(2.) The present appellants are plaintiffs in Title Suit No.89/2002 in the Court of learned Civil Judge(Jr.Division)No.1, Barpeta and the present respondents are defendants in the said suit.

(3.) The case of the plaintiffs appellants is that 'A' schedule land belonged to the pattadars Abdul Kasem, Abdul Samad,Abdul Munnaf,Abdul Rashid and Abdus Siddique. The plaintiffs appellants are sons of Abdus Siddique, the proforma defendants named in the said plaint are the legal heirs of late Abdul Kasem and rests are legal heirs of the aforesaid co-pattadars of 'A' Schedule land. Abdus Siddique, the predecessor-in-interest of plaintiffs appellants did not sold the 'B' schedule land and after his death the plaintiffs appellants also had not transferred the land to anybody. Abdus Siddique died on 8.12.1998. During his life time and while he was suffering from illness he put 3 bighas 0 katha 6-1/5th lechas of land under mortgage with defendant respondent No.2, Samsul Haque at Rs.1000/ and during his life time he repaid the mortgage to the defendant respondent No.2 in the last part of the November, 1999 and the plaintiffs appellants asked the defendant respondent No.2 to give back the vacant possession of the land to them but he took some time as there was wheat cultivation over the land. The defendant respondent No.2 requested the plaintiffs appellants to wait till harvesting of the crop. After harvesting, the requests of the plaintiffs appellants were not paid to any heed. On 3.12.2001 on further pressing the defendant respondent No.2 to give back the possession he refused and asked the said plaintiffs appellants that if the defendant respondents No. 1 and 3 who are occupying 1 bigha of land returned back the said land, then the defendant respondent No.2 would return his land. On approaching defendants respondents No. 1 and 3 they refused to vacate the said land measuring 1 bigha on the contention that the said defendant respondent Nos.1 and 3 purchased the said land from Abdus Siddique on 4.1.1999 by execution of two sale deeds. After searching in the office of Barpeta Sub-Registrar, the plaintiffs appellants came to know that the defendants respondents No. 1 and 3 managed to execute 2 sale deeds bearing registration Nos. 4/1999 dated 4.1.1999 and 8/1999 dated 8.1.1999 in the office of the Sub-Registrar, Mandia in favour of defendant respondent No.1. Thereafter plaintiffs appellants brought the suit for declaration of right title interest and recovery of khas possession, cancellation of the mutation order passed in favour of defendant respondent No.1 and cancellation of registered sale deeds No. 4/1999 dated 4.1.1999 and 8/1999 dated 8.1.1999 and partition of the suit land.It was pleaded that the said sale deeds are forged and fake as Abdus Siddique died prior to the date of execution of the sale deds.