TAMIJ UDDIN LASKAR S/O LATE TUTI RAJA LASKAR Vs. MUSSTT MAJIBUN NESSA W/O LATE SAMAN ALI CHOUDHURY AND ORS

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree dated 15-07-2009 passed by learned Civil Judge, Cachar, Silchar, in Title Appeal No. 11/2007, whereby, learned first appellate court dismissed the suit of the plaintiff by allowing the appeal filed by the defendant.

(2.) The facts leading to the second appeal are as follows :- The appellant (hereinafter referred to as plaintiff) filed the Title Suit No. 223 of 2006 for declaration of right, title and interest and recovery of possession. The case of the plaintiff was that he purchased the suit land measuring 18 kathas covered by dag no. 129 of 2nd R.S. Patta No. 21 and dag no. 128 of 2nd R.S. Patta No. 20 by registered deed no. 463/1998, from the legal heirs of Ajibun Nessa. Ajibun Nessa and her brother Sunahar Ali, predecessors-in-interest of the defendants, inherited the property left by their father Indan Ali. Ajibun Nessa and Sunahar Ali amicably partitioned their ancestral property. As per such amicable partition, the suit land fell in the share of Ajibun Nessa and they had been possessing their respective shares within the specific boundary. As Ajibun Nessa was married at a distant place, she was possessing the suit land through one Khalilur Rahman and after his death, through her son Toffojul Ali. After purchasing the land from the legal heirs of Ajibun Nessa, the plaintiff has been possessing the suit land. The defendant tried to dispossess the plaintiff from the suit land and consequently, he instituted a criminal proceeding before the executive magistrate and eventually the plaintiff filed the instant suit initially for declaration of title and confirmation of possession and injunction. However, subsequently by amendment of the plaint recovery of possession was also sought for. The defendants contested the suit by filing written statement.

(3.) The pleaded case of the defendants was that after death of Indan Ali, his son Sunahar Ali inherited 2/3rd share of the property left by Indan Ali, which was mutated in his name and he was enjoying the possession over the said land. It has been further stated, that Sunahar Ali has been possessing the entire land left by his father, including the 1/3rd share of Ajibun Nessa beyond the period of limitation openly, peacefully and without interruption and Ajibun Nessa never possessed the suit land. It was the case of the defendants, that neither Ajibun Nessa, nor the plaintiff possessed the suit land, and the possession of the suit land was never delivered to the plaintiff.