SAMSUL HAQUE BORBHULYA Vs. IBRAHIM ALI BORBHULYA

JUDGEMENT

(1.) THE legal heirs of defendant no. 1 and the defendant Nos. 2, 5, 6, 8, 10, 11, 13 to 18, 21 to 34, 34 (a), 34 (g), 35 to 38 and 19 other proforma defendants in Title suit No. 13/1997 have preferred the present appeal challenging the judgment and preliminary decree both dated 7-4-2003 passed by the learned Civil Judge (Sr. Division), hailakandi in the aforementioned suit declaring the joint title of the plaintiffs (the original respondent Nos. 1 to 6 in the appeal) over the land measuring 32 Bigha 7 katha 14 Chatak 9 Gonda 12 Kora 1 Kranti, described in Schedule 1 by partition of the said land by maintaining possession of the plaintiffs over the land described in Schedules 2 to 5 and drawing a preliminary decree for allotment of a separate share of the said land without reference to the Revenue department and, thereafter, for preparation of the separate share.

(2.) THE present respondent Nos. 1 to 3, 5, 6 and Mustt. Rukia Begum (whose name has been struck off from the list of respondents on the prayer of the appellants vide order dated 6-5-2005 as she died on 20-7-2003) instituted Title Suit No. 13/1997 against the predecessor in interest of the present appellant Nos. 1 (a) to 1 (d) and also the appellant Nos. 2 to 32 and two others namely, Md. Fazle Haque Barbhuiya and md. Nurul Islam Barbhuiya, as principal defendants as well as against the present appellant Nos. 33 to 51 along with 237 others as proforma defendants, praying for a decree for declaring the joint title of the plaintiffs over the land measuring 32 Bigha 7 katha 14 Chatak 9 Gonda 12 Kora 1 Kranti, described in Schedule 1 to the plaint by partition of the said land by maintaining possession of the plaintiff over the land described in Schedules 2 to 5 of the plaint and for a preliminary decree for allotment of a separate share of the said land without reference to the Revenue Department and, therefore, for preparation of a separate share and accordingly, to pass final decree of recovery of actual possession of the said land through the assistance of the Court, claiming title on the basis of inheritance over the land in question. The said suit was contested by the principal defendant Nos. 1, 2, 4 to 19, 21 to 40 as well as the pro forma defendant Nos. 41, 54, 187, and 189 by filing written statement denying the claim of the plaintiffs. The other principal defendants, namely the defendant Nos. 3 and 20 (Md. Lilumia Barbhuiya and Md. Abdul Hamid barbhuiya), did not contest the suit by filing any written statement, so also by the other proforma defendants except proforma defendant Nos. 41, 54, 187 and 189 as noticed above. The learned Trial Court on the basis of the pleadings framed the following issues :-" 1. Whether there is a cause of action for the plaintiff suit? 2. Whether the suit is barred by the law of adverse possession?

(3.) WHETHER the suit is bad for mis joinder and non joinder of necessary parties?