MD. SHABER ALI AND OTHERS Vs. MD. AKKAS ALI AND OTHERS
HIGH COURT OF GAUHATI
Md. Shaber Ali And Others
Md. Akkas Ali And Others
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MIR ALFAZ ALI,J. -
(1.) This second appeal by the plaintiffs is filed against the judgment and decree dated 10.03.2008 passed by learned Civil Judge, Dhubri in T.A. No. 55/2006, whereby, learned Civil Judge dismissing the appeal filed by the plaintiffs/appellants, confirmed the judgment and decree dated 11.08.2006 passed by the learned Munsiff No. 1, Dhubri in T.S. No. 40/1995.
(2.) The brief facts leading to the present second appeal are that the plaintiffs filed a suit for declaration of right, title and interest, recovery of possession and other consequential reliefs. The pleaded case of the plaintiffs was that the suit land measuring 3 B 3 K 18 L covered by old Khatian No. 79 being part of old Dag No. 448 was purchased by the plaintiffs from Sabatun Nessa by registered sale deed and accordingly, the plaintiffs have been possessing the suit land by right of purchase. It was also stated in the plaint that the defendant No. 4, Sabiron Bewa filed a suit being T.S. No. 82/78 in the court of Munsiff No. 2 against the plaintiffs for partition, declaration of title and separate possession in respect of the suit land, which was dismissed. Having failed to succeed in T.S. No. 82/78, the respondent No. 4 along with the other defendants tried to dispossess the plaintiffs and occupied a portion of the suit land as described in schedule B of the plaint forcing the plaintiffs to file the suit for declaration of right, title and interest and recovery of possession. Though the defendants filed written statement raising various formal/legal pleas, like maintainability, non-joinder of necessary party, limitation etc., the defendants did not deny the title of the plaintiffs over the suit land. Only averment on the factual aspects in the written statement was that the sale deed on the basis of which, the plaintiffs claimed title, were not filed in court along with the plaint. On the basis of the above pleadings, learned Munsiff framed the following issues:-
1. Whether the suit is maintainable in its present form ?
2. Whether the suit is barred by limitation ?
3. Whether the suit is bad for non-joinder of parties ?
4. Is there any cause of action for the suit ?
5. Whether the suit is liable to be dismissed under section 34 of the Specific Relief Act ?
6.Whether the plaintiff has got right, title and interest over the suit land ?
7.Whether the plaintiff was dispossessed by the defendants from the suit land ?
8.Whether the plaintiff is entitled to get decree as prayed for ?
9.To what other reliefs the parties are entitled ?
(3.) Both the parties adduced evidence, oral as well as documentary and after hearing the parties, learned Munsiff decreed the suit of the plaintiffs.;
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