GIASUDDIN AHMED Vs. SIRAJUL ISLAM

JUDGEMENT

(1.) DEFENDANT in Title Suit No. 5 of 1998 of the Court of learned Civil Judge (Junior) Division No. 1 of Morigaon has preferred this second appeal challenging first appellate judgment and decree dated 19.02.2003 in Title Appeal No. 17 of 2002 of the Court of learned Civil Judge (Senior) Division at Morigaon. By this appellate judgment, suit of the plaintiff was decreed by reversing the decree of dismissal passed by the original Court in the main title suit.

(2.) PLAINTIFF , Sirajul Islam who is the respondent No. 1 in this appeal instituted Title Suit No. 5 of 1998 in the Court of learned Civil Judge (Junior) Division No. 1 at Morigaon against the present appellant as principal defendant No. 1 and four others as Proforma Defendants praying for declaration of his right, title and interest over Schedule -A land measuring 6 lechas covered by Dag No. 141/838 of Periodic Patta No. 174 of Village - Mikirigaon Kissam under Uttarkhula Mouza to the District of Morigaon. Case of the plaintiff is that land measuring 1 bigha 2 lechas originally belong to one Mokbul Hussain, father of Proforma defendant No. 6 and the same was covered by dag No. 141 of Periodic Patta No. 174. The total land under the patta was 1 bigha 2 lechas. During settlement operation, the whole land of 1 bigha 2 lechas inherited by the legal heirs of Mokbul Hussain was partitioned into smaller dags out of which one of his sons Md. Meraz Hussain got 6 lechas in the aforesaid dag and patta and thereupon a separate dag being Dag No. 838 under the said patta was curved out. All these developments took place in the year 1973. After death of Meraz Hussain this 6 lechas of land devolved on his son Anowar Hussain who by registered sale deed No. 1551 dated 08.10.1990 sold the same in favour of the plaintiff. Plaintiff thereupon obtained mutation in his favour in the records of rights. It is further stated that defendant No. 1 approached the plaintiff for constructing a room over 2 lechas of land which the plaintiff permitted as he was being transferred out in course of his employment. However, the remaining 4 lechas of land remained vacant. Taking opportunity of the situation defendant No. 1 with the permission of the plaintiff constructed a temporary thatched house on 4 lechas of land and promised to pay rent for the land. But after nearly one year and a half, defendant No. 1 stopped paying rent as a whole. Thereafter in the month of August, 1997 plaintiff came back on retransfer and asked the defendant No. 1 to vacate the land described in Schedule -C so that he could make construction for a commercial complex. Although initially defendant agreed to vacate but ultimately did not vacate. It is under such circumstances, plaintiff served a notice on the defendant No. 1 through Lawyer asking him to vacate and after expiry of notice period ultimately was compelled to institute the suit for declaration of right, title and interest, confirmation of possession of Schedule -B land measuring 2 lechas and recovery of possession of land measuring 4 lechas described in Schedule -C to the plaint.

(3.) ON the basis of the aforesaid rival contention of the parties, the learned trial Court framed as many as 9 issues which are quoted below: