RAISH KHAN Vs. AFAZAL HUSSAIN

JUDGEMENT

(1.) This is an appeal under Section 100 of the Code of Civil Procedure as the defendant-appellant is aggrieved by the judgment and decree dated 10.9.2008 passed in Title Appeal No. 38/2004 by learned Additional District Judge, F.T.C.-III, Buxar, affirming the judgment and decree dated 23.8.2004 passed by learned Additional Munsif, 1st, Buxar, in Title Suit No. 104/98/67/2001. The respondents filed Title Suit No. 104/98 seeking their declaration of title and recovery of possession over the suit land as also for permanent injunction alleging that they had purchased the suit land admeasuring 16 decimals on 2.5.1973. They also claimed that prior to the said purchase, after obtaining due permission from the Consolidation Officer, registered Mahadnama dated 17.3.1973 was executed with the consent of all co-sharers of the vendor who had made their signatures on the deed in presence of the concerned Mukhiya and Sarpanch. A boundary-wall was thereafter constructed after mutation and towards north on the flank of the road, a main gate was constructed. The plaintiff had to file the suit; when the defendants-appellants started interfering with the peaceful possession of the suit property on the plea that they had purchased 3 decimals of land on 11.12.1973 appertaining to the same plot from the same vendor.

(2.) The defendants, who are appellants herein, while contesting the suit took the plea that the total area of the concerned plot i.e. Plot No. 593 is 74 decimals and four co-sharers were entitled for 18 1/2 decimals each including the vendor Fazal Rahman, it was the case of the appellants/defendants before the trial court that Fazal Rahman got his share of 18 1/2 decimals of said land towards the western side. They further claimed that the defendants purchased 3 decimals out of that and contradicted the claim of the plaintiffs that only 16 1/2 decimals land fell in the share of the vendor Fazal Rahman. Claiming that the plaintiff had no right and title over the said 3 decimals of land purchased by defendants, they resisted the suit.

(3.) On the basis of the rival pleadings, learned trial Court framed issues including issues No. 4 and 5 which read thus:--