MAHESH SINGH Vs. MD. KAISAR JAMAL

JUDGEMENT

(1.) THE defendants have filed this first appeal against the judgment and decree dated 13.8.1985 passed by the learned Subordinate Judge, Biharsarif in Title Suit No. 11 of 1979 whereby the court below decreed the plaintiffs respondents' suit for partition.

(2.) THE plaintiffs respondents filed the aforesaid suit for partition of their share to the extent of 4 acres 24 decimal from 33 acres and 13 decimal. The plaintiffs respondents claimed the aforesaid relief alleging that 33 acres 13 decimal land was the khud kast and bakast land of the Malik Habibur Rahman and others. Habibur Rahman had 5 anas 6 dam 13 kauri and 6 bauri share in Tauji No. 13249 at the time of cadastral survey. At that time the khata No.18 was under Thika. On the death of Habibur Rahman his entire share devolved on his father Mohd. Ishaque who sold 1 ana 6 dam Milkiyat interest including khud kast and bakast land to Mohd. Samshul Haque by registered sale deed dated 2.9.1929 who came in joint possession of the land. Subsequently, Samshul Haque further purchased 15 dam and odd Malkiyat interest from Most. Nasihan by registered sale deed dated 16.3.1931. Accordingly, he acquired 2 anas 5 dam Malkiyat interest in the tauji including khud kast and bakast land as such he had 4 acres 24 decimal interest in the khud kast and bakast land of khata No. 18.

(3.) THE defendant Nos. 1 to 5 filed joint contesting written statement. The defendant Nos. 6 to 9 filed separate written statement but did not contest. According to the contesting defendants appellants khata no. 18 was in possession of Ram Tahal Singh since before cadastral survey. After his death his brothers Puneet Singh and Rohan Singh came in possession. They acquired the Milkiyat interest along with the khud kast of Mohd. Ishaque to the extent of 5 anas 6 dam, 13 kauri, 6 bauri, 13 fauri and 10 rauri out of 6 annas in village Gauspur, Goraur in tauzi no. 13249 under registered sale deed dated 22.6.1929. According to the defendants there was no settlement of 4 acres 24 dam by the Malik in favour of Abdul Gaffar and Abdul Gaffar never came in possession. There was no unity of title and possession and still there is no unity of title and possession between the parties. If any paper of settlement is filed it is forged document. Ram Tahal Singh remained in possession without any interruption and openly to the knowledge of entire locality including the plaintiffs as such the title of the defendant has been perfected by adverse possession. The names of these defendants have been entered in register ­ II. Mohd. Ishaque never sold his Milkiyat interest including khud kast and bakast to Mohd. Samshul Haque. Hukumatnama dated 5.6.1943 is forged and fabricated.