Sahidullah Munshi, J. - (1.) This second appeal is at the instance of the plaintiff against the judgment and decree dated 11 February, 2009 passed by the learned Civil Judge, Senior Division, 1st Court, Contai in Title Appeal No. 54 of 2007 affirming the judgment and decree dated 10th April, 2007 passed by the learned Civil Judge, Junior Division, 1st Court, Contai in Title Suit No. 99 of 1997. Plaintiff filed a suit for declaration permanent injunction and recovery of Khas possession. According to the plaintiff 'Ka' and 'Ka/1' schedule properties pertains to 'Ga' schedule property. Originally it was the plaintiffs' case that 'Ga' schedule property belonged to Santosh Kumar Nag who transferred the same to defendant nos. 2 and 3 sometime in 1972 and since then defendant nos. 2 and 3 had been in possession of the 'Ka' schedule property by paying government tax. Santosh Kumar Nag sold 28 decimals of land to defendant no.1 on the western side of the suit schedule land. Prior to transfer of the rest of land to the defendant no.2 and 3, defendant no. 2 gifted the said property to plaintiff on 11.2.1984 and both the defendant nos. 8 and 3 and transferred the rest land to plaintiff on 16.021982 and 17.02.1984 and since then plaintiff had been possessing the 'Ga' schedule property by paying government rent and taxes. The defendant no.1 denied the title of plaintiff in 'Ka' schedule property and on 19.06.1985 he threatened the plaintiff of dispossession from the suit property and thus, cause of action for the suit arose there from.
(2.) By way of amendment plaintiff incorporated in the plaint that on 16.01.1994 during pendency of the suit defendant no.1 dispossessed the plaintiff from 'Ka/1' schedule property. There are many valuable trees of the plaintiff over the said dispossessed land and therefore, the plaintiff prayed for a declaration of title over the 'Ka' schedule property and a permanent injunction over the same for peaceful enjoyment. Further prayer of the plaintiff is for recovery of Khas possession of the 'Ka/1' schedule property by evicting the defendant no.1 there from. The suit was contested by defendant no.1 by filing written statement. The defendant nos. 1Ka to 1Ga appeared as the assignee of the defendant no.1 and filed joint written statement denying all material allegations in the plaint. The plaintiff principally agitated that the suit is bad for non-joinder and or misjoinder of necessary parties and the description of schedule properties are vague and indefinite. It is the admitted case that defendant no. 1purchased 21 decimals of land on 07.01.1972 from Santosh Kumar Nag and accordingly, his name was recorded in the L.R. settlement porcha. Defendant no.1 gifted 16 decimals of land to his younger daughter-in-law (Defendant no.1) vide deed no. 6801 dated 24.09.2004. The defendant no.1 gifted his rest land in favour of his grand sons defendant nos. 1(Ka) to 1(Ga) vide deed no.6802 dated 24.09.04. Defendant denied the plaint case that the suit schedule property of the plaintiff ever had 38 decimals of land as per settlement record and 46 decimals of land on physical verification. The defendant prayed for dismissal of suit. The learned trial Court framed the following issues : 1. "Is the suit maintainable in Law? 2. Is the suit barred by limitation? 3. Is the suit bad for non-joinder and misjoinder or necessary parties? 4. Is the suit description of the suit land vague and indefinite? 5. Whether the plaintiff has right, title, interest and possession over the 'Ka' and 'Ka/1' schedule properties? 6. Is the plaintiff entitled to get the decree as prayed for? 7. To what other relief, if any the plaintiff entitled?"
(3.) This second appeal was admitted by an order dated 17.06.2009 on the substantial question of law which was set out below: a) "Whether the learned Courts below committed substantial error of law in passing a decree for declaration of title and recovery of possession on the basis of area mentioned in the amended plaint pursuant to the Commissioner's report notwithstanding the fact such amended area less the area mentioned in the actual deed of purchase by the plaintiff; b) Whether the learned Courts below committed substantial error of law by rejecting the plea of the appellant that two of the co-sharers of plot No.907 ought to have been added in the proceedings by overlooking the fact that except those two persons all other co-sharers were made parties and that for effective adjudication of the dispute involved in the suit, the presence of all the co-sharer of plot No. 907 is necessary. c) Whether the learned Courts below committed substantial error of law in passing a decree for declaration and recovery of possession by overlooking the fact that from the available deeds in respect of plot No.907 it would appear that some of the co-sharers sold in excess of their shares as would appear from their own deed of purchase, and, as such, in the absence of all the co-sharers of the plot, the suit was not maintainable.";