MD SAMIR UDDIN MAZUMDAR Vs. SAMSUN NAHER MAZUMDAR

JUDGEMENT

(1.) A suit being Title Suit No. 10/94 was filed for declaration of right, title and interest over the land and for confirmation of possession.

(2.) The case of the plaintiff was that they acquired right to the land by purchase from one Khudeja Bibi, who became the owner of the land by inheritence. The case of the plaintiff was that one Mobarak Ali was the original owner in the land and he died leaving 2 sons, namely, Abdul Bari and Abdul Khaleque and seven sisters and wife. On 18.5.1932 vide Exhibit 1 there was a partition of the land and in that deed of partition specifically it was stated that this land of Mobarak Ali is being partitioned between two brothers and the mother and it was specifically also mentioned that the right, title and interest and the share of the land of the sister is admitted and as and when the sisters will demand their shares to the land held by Mobarak Ali, the two brothers shall give their shares and it is the further case of the plaintiff that after partition Khudeza Bibi got her share from the two brothers. After getting the share from the two brothers she sold the land to the plaintiff by a registered deed on 16.4.1980 and 11.9.1980. That the name of Khudeza was mutated to the land on 7.1.1981. But that was field mutation and as defendant No. 1 objected to it the learned S.D.C. cancelled the same on 4.2.1982. Thus there being clouded over the title of the plaintiff, the plaintiff filed the aforesaid suit claiming the aforesaid rights as stated above. The defendant filed a written statement and amongst others the plea of adverse possession in the following manner and shape was taken by them : (i) Paragraph 4 : That the suit is barred by limitation, and in para 5 it was stated as follows : (ii) Para 5 : "Original owner Mobarak Ali died leaving behind his 2nd wife Indrani Bibi and 2 sons Abdul Bari and Abdul Khaleque and 7 daughters viz., (1) Esha Khatun, (2) Majeda Bibi, (3) Rupjan Bibi, (4) Khudija, (5) Malika Khatun, (6) Nurunnessa, (7) Nurun Nessa. The daughters were married in different places and they had no possession in the land left behind by Mobarak Ali and for this reason the R.S. Pattas were issued in the name of 2 brothers alone. Abdul Bari, the father of answering defendant died in 1932 leaving behind 4 (four) sons and 2 (two) daughters. Out of the 4 sons of Abdul Bari only the answering defendant is residing in his paternal house and his brothers died at Bangladesh and out of 2 sisters one died unmarried and the other died married. Thus only the answering defendant is in possession of the entire suit patta land exclusively from 1933 as owner adversely and as such the claim of the plaintiff is false."

(3.) As many as 6 issues were originally framed in the suit and the learned Munsiff by judgment dated 26.7.1986 decreed the suit holding that the plaintiff has right, title and interest. An appeal was preferred against that judgment and that was disposed of by an order of remand dated 6.1.1987 and two additional issues were framed and parties examined some more witnesses and the suit was again decreed by the learned Assistant District Judge No. 2 Cachar, Silchar by judgment dated 20.1.1988. Only an additional issue which is necessary for disposal of this appeal is Issue No. 5(b) and that reads as follows: