DEWAN ALKASH ALI Vs. ALI BAKSH

JUDGEMENT

(1.) THIS appeal by the defendants in Title Suit No. 47/1991, is directed against the judgment and decree dated 12. 04. 2000 passed in Title Appeal No. 10/1995 by the learned Civil Judge, Senior Division No. 2 at Guwahati, allowing the appeal preferred by the plaintiffs in the said suit and decreeing the suit by setting aside the judgment and decree dated 21. 02. 1995 passed by the learned Munsiff No. 4, Guwahati in Title Suit No. 47/1991.

(2.) THE respondent Nos. 1 alongwith respondent No. 2 (against whom the appeal has abated) as plaintiffs instituted Title Suit No. 47/1991 against the predecessor in interest of the appellant Nos. 1 (a) to 1 (d) and the proforma respondent Nos. 3 to 7 praying for a decree declaring right, title and interest and for partition in respect of 1/3rd shares of land measuring 1 bigha 3 kathas 10 lechas covered by Dag No. 782 of K. P. Patta No. 106 with houses standing thereon as described in the schedule to the plaint, contending inter alia that the land measuring 1 bigha 3 kathas 10 lechas originally belonged to Mangal Shah Dewan, who had three sons, namely, Gahin Sayed (defendant No. 1), Nazar Ali (predecessor in interest of proforma respondent Nos. 3 to 7, who were the defendant Nos. 2 to 6 in the suit) and Farizur Ali @ Farizur Sayed (predecessor in interest of the plaintiffs) and after the death of Mangal Shah Dewan those three sons inherited the property in equal shares and accordingly their names were mutated in the revenue record. It has further been pleaded in the plaint that since the joint possession created some inconvenience, the plaintiffs insisted the defendant No. 1 for amicable division of the property, which having denied, the suit has been filed. The defendant No. 1 (predecessor in interest of the appellants) contested the suit by filing the written statement contending inter alia that though the suit land originally belong to Mangal Shah Dewan, the same was put to auction sale by the revenue authority for recovery of the arrear of land revenue and in such auction sale the land was purchased by one Harmohan Das in the year 1940-41 and thereafter by an oral transfer for the consideration of Rs. 8/- the said land was transferred by Harmohan Das in favour of the defendant No. 1 and accordingly his name was mutated in the revenue record, on the basis of which K. P. Patta was issued in his name. The defendant No. 1, therefore, pleaded that after such purchase, he became the absolute owner in respect of the suit property. The defendant Nos. 2 to 6 (the successor in interest of the 3rd son of Mangal Shah Dewan, namely, Nazar Ali) by filing the written statement have supported the case of the plaintiffs.

(3.) THE plaintiffs in support of their claim examined 3 (three) witnesses and also proved three documents. The defendant No. 1 also examined 4 (four) witnesses and also proved four documents. The witnesses have duly been cross-examined by the respective parties. The learned Trial Court upon appreciation of the evidences on record dismissed the suit of the plaintiffs vide judgment and decree dated 21. 02. 1995 by holding that the suit land was purchased by one Harmohan Das as auction purchaser in the year 1940-41, on being put to sale for recovery of arrear land revenue and though the plaintiffs in their evidence have claimed that the such land was thereafter purchased by all the three sons of Mangal Shah Dewan from Harmohan Das at Rs. 27/-, out of which the predecessor in interest of the plaintiffs has paid Rs. 9/- as his share, there is no documentary evidence in respect of such purchase of the suit land from the auction purchaser.