ASRAB ALI Vs. ISHAB ALI LUTFUR RAHMAN

JUDGEMENT

(1.) 1. This first appeal has been filed against the judgment and decree dated 12/11/90 passed by the learned Assistant District Judge, Nagaon, Assam in Title Suit No. 30/82. By the impugned Judgment and decree the learned Assistant District Judge decreed the suit. Hence this first appeal.

(2.) The brief facts of the case are quoted below from the Judgment of the learned Assistant District Judge :- This case for the plaintiff, in brief, is that the entire land of dag No. 211 covered by periodic patta No. 149 originally owned by Seikh Md. Hussain. The area of the entire dag was. 20 Bigha-18 Lechas. Ultimately in the settlement of 1957-58 and 1968-69,. the old dag was converted into different dags. The suit land appertains to dag No. 274 under periodic patta No. 52. The description of the suit land has been well mentioned in the schedule of the plaint. Late Seikh Md. Hussain gifted the entire dag to late Ishab Ali, the predecessor in interest of the present plaintiffs, Asrab Ali; the defendant No. 1, the defendant No. 2, Surat Ali and Late Mosrab Ali, the predecessor in interest of defendant Nos. 3,4,5 and 8 by a registered gift deed dated 1.8-.33. Accordingly all the four donees of the gift deed got equal share to the tune of 1B-2K-13L. The donees accepted the gift and possessed their respective shares by amicable partition. Late Seikh Md. Hussain again gifted 7B-5K- 16L. of land of the said dag No. 211 late Abdul Rajek, father of principal defendant No. 12 and 1B-3K-7 Lechas of the said dag to Ms daughter Chand Bhanu by a separate dead of gift. Late Md, Hussain also gifted 5 bighas of land of the dag under reference to his wife Safura Khatoon. In this way Seikh Md. Hussain bequathed his entire land of dag No. 211 to the aforesaid inheritors. Chand Banu died about 44 years ago leaving his heirs Abdul Halem and Abdul Barek while Abdul Barek and Abdul Halem were in possession of the land inherited from mother, they sold the land in favour of the original plaintiff late Ishab Ali by registered sale deeds in the year 1945. The possession thereof was duly delivered in favour of late Ishab Ali. This land was also mutated in the name of Late Ishab Ali. Similarity Safura Khatoon was possessing 5 bighas of land got by way of gift from her husband late Seikh Md. Hussain. She also ultimately transferred her right, title, interest and possession in respect of 5 bighas to late Ishab Ali by a registered gift deed on 13/12/43. In this way Late Ishab Ali, predecessor in interest of the plaintiff 's got the share of Chand Banu and Safura Khatoon by two registered deeds. Thus Ishab Ali had acquired 7B-3K-16L including his own share in dag No. 274 and thus became the owner and possessor of the said 7B-3K- 16L. of land. Out of the said land late Ishab Ali sold 1 bigha 15 Lechas of land of the dag under reference to principal defendant Nos. 36,38,39 and 40 and as a result the remaining land to the tune of 6 bighas and odd had been possessing without any disturbance by late Ishab Ali. The defendant No. 1 and 2 and late Masrob Ali the predecessor in interest of the defendant Nos. 3,4 and 5 and sold their rspective share in dag No. 274 to principal defendants No. 19,41,42,53,44 and 56 in different dates by registerd sale deeds. As such, the principal defendant have no right, title and interest over the suit land. While late Ishab Ali, the predecessor in interest of the plaintiff had been possessing the suit land the principal defendants in a body attempted to trespass the land described in the Schedule ka of the plaint and tried to construct a temporary. As a result, there was an apprehension of breach of peace late Ishab Ali accordingly filed a criminal case U/S. 145/146 I.P.C. The Criminal Proceeding was accordingly registerd as M.R. Case No. 130/81 and the said proceeding is now stayed. The main defendants denied the right, title and interest of the other land described in Schedule Ka-2 -Ka 3 and Ka-4. The plaintiff also came to know that the defendants Nos. 1,2,3,4,5 and 8 created some fraudulent deeds without consideration in favour of the defendant Nos. 9,10 and 11. During the pendency of the suit, the aforesaid defendants made some fraudulent sale deeds in favour of defendant Nos. 11 Ka, 11 Kha, 11Ga, 11 Unga, 11 Cha and 11 Chha. As such the plaintiff was compelled to file this suit praying inter-alia for a declaration of right, title and interest in respect of the suit land and confirmation of their possession. The suit was resisted by the defendants. Defendant Nos. 1,2,3,4,5 and 8 filed a joint written statement The defendant No. 9 submitted a separate written statement while defendant No. 11 Ka, 11 Kha, 11 Ga, and 11 Gha filed a joint written statement. According to the main defendants Nos. 1,2,3,4,5 and 8 the suit has got no cause of action and the same is not maintainable. It is averred that the suit is bad for non-joinder of parties. They denied, the averments made in the plaint. According to them the original owner of the entire property late Md. Hussain had 2 sons Abdul Waheb and Abdul Rajek and both the sons died during his life time. After the death of late Md. Hussain his properties devolved in main defendants Nos. 1,2,3,4,5 and 8 and Ishab Ali. It is also averred that late Ishab Ali, predecessor in interest of the plaintiff sold his share. The suit land had been possessed by the main defendants. The gift deeds as mentiond by the plaintiffs are all fraudulent deeds. The defendants: No. 9 in his written statement averred that the purchased 2 kathas of landfrom defendant Nos. 1,2,3,4,5 and 8 for a consideration of Rs. 20,000/- by a registered sale deed on 5.5.82 while defendant No. 10 and 11 also averred that they purchased 2 kathas and odd land from defendant No. 2,3,5 and 8 on 7/6/82 by a registered deed for a consideration of Rs. 19,000/-. Similarly defendants No. 11 Ka, 11 Kha, and 11 Ga also contended that: they also purchased the land from the defendants Nos. 1 and 3 by a registered deed dated 6.4.84. The other defndants claimed their right from the defendant Nos. 1,2,3,4 and 5.

(3.) As many as 8 issues were framed by the learned Assistant District Judge. Only one issue is relevant for the disposal of this first appeal, that is, Issue No. 7 which reads as follows :-