AZGOR ALI Vs. REAZUDDIN MIAH

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dt. 14-7-1978 passed by the learned Assistant District Judge, Goalpara, Dhubri in Title Appeal No.15 of 1978. By the impugned judgment and decree the learned lower Appellate Court set aside the judgment and decree dt. 27-1-78 passed by the learned Munsiff No. 2, Dhubri, in Title Suit No. 169 of 1976.

(2.) The present appellants as plaintiffs filed the suit against the present respondents for declaration that the decree obtained in a previous Title suit No. 736 of 1969, in which the present appellants were not parties is inoperative. The appellants also prayed for a decree for declaration of their right, title and interest and joint possession over the suit land and also for permanent, injunction.

(3.) Late Pasan Sk, the predecessor of the appellants and the pro forma defendants of the Title Suit was the owner of 30 Bighas and odd land which includes the suit land measuring about 20 Bighas and odd. It is alleged that appellants and pro forma defendants continued to possess the land after the death of Late Pasan Sk as his heirs. The land was duly recorded in the revenue record in the name of Late Pasan Sk. It is further alleged that present appellants became the owners of the suit land and are in possession of the land. On 15-1-76, the respondents got the suit land surveyed and on enquiry appellants came to know that the respondents obtained an ex parte decree on 15-9-1972 in Title Suit No. 736 of 1969. It is stated that the earlier suit was filed by the Respondents for correction of the records of right as according to respondents the name of Late Pasan Sk was wrongly recorded in the revenue record. There is no dispute that in the earlier suit present appellants were not made parties though they were also heirs of Late Pasan Sk and that the suit was decreed ex parte. According to respondents, Late Meser Ali, who was the predecessor-in-interest of the respondents was the owner of the part of the present suit land measuring about 15 Bighas and as such, the respondents had to file the suit for correction of revenue records in respect of the said 15 Bighas of land. There is no dispute, as stated earlier, that the present appellants who are the heirs to Late Pasan Sk were not made parties in the earlier suit though the decree was for correction of records in respect of the part of the suit land and that the suit was decreed ex parte.