- (1.) THIS appeal is against the judgment and decree of affirmation passed by the Additional District Judge -IX, Dhanbad in Title Appeal No. 38 of 1988. The defendant is -the appellant - appellant. The plaintiffs had filed -Title Suit No. 94 of 1970 in the Court of. Munsif, Dhanbad praying relief for declaration of title and delivery of possession over the suit land described in Schedule 'C ' to the plaint measuring an area 9 Chhataks being portion of plot No. 2109 appertaning to Khata No. 100 of Mouza Parurpala P.S. Chouki, District Dhanbad.
(2.) THE case of the plaintiffs was that the suit land at one point of time belonged to one Abdul Rauf and Moinuddin which was purchased from one Mahoshwari Devi, who had acquired the same from the Railways. Abdul Rauf and Moinuddin sold the said land measuring one Katha and nine Chattak as described in Schedule 'A ' of the plaint to the plaintiff by virtue of registered sale deed dated 1.7.1965. The plaintiffs constructed a compound wall over the Schedule A land also constructed a tin shed on the southern portion of the land and let out the same on rent to the tenant. The further case of the plaintiffs is that adjacent to the south of the land described in Schedule A, the wife of the plaintiff Nafisa Bibi had her own land measuring one Katha and plaintiff after purchasing the Schedule A land amalgamated the same with her own land bringing both the lands within one boundary. The plaintiffs subsequently sold one Khata of land out of Schedule A land which has been described in Schedule B of the plaint to his nephew, Md. Hussain and minor Md. Ahmad who shortly thereafter went to Pakistan leaving behind Md. Hussain 'swife. It is stated that the plaintiffs had, however, given possession of the remaining land of Schedule A with respect to nine Chhatak to his nephew. It was stated that Schedule C land measuring nine Chhatak was left out after transferring of Schedule B land from Schedule A land. It was stated that the defendant claimed that he had purchased the Schedule B land from the nephews of the plaintiff and on that basis he has been threatening to take possession of the same. It was stated that any document by which the defendant is claiming to have purchased the Schedule B land from his nephew must be forged and fabricated and defendant had no right, title and interest over any portion of the Schedule B or C land, but on 12.7.1970 the defendant forcibly entered into the Schedule B and C land by demolishing the plaintiffs ' boundary wall and dispossessed him. Hence the suit. The defendant contested the suit by filing written statement and denying the statements made in the plaint and also took several objections regarding maintainability of the suit. It was stated that the lands mentioned in Schedule B and C of the plaint had been purchased by this defendant for valuable consideration from Md. Hussain and Md. Ahmad both sons of Md. Sarfaraj by a registered sale deed dated 2.11.1969 and since then he has been in possession over the same, it is claimed that the sale deed is valid and genuine. It was also pleaded by the defendant that though the sale deed of the defendant mentioned only one Katha of land but the remaining area described in schedule C of the land was also sold to the plaintiffs predecessor -in -lnterest and since then the plaintiff has not constructed any boundary wall or tin shed and therefore, there is no question of demolition of the same causing damage to the plaintiff and giving rise to any cause of action for the suit.
(3.) ON the basis of the said pleadings of the parties, the trial Court framed as many as six issues. Out of which, issue No. 3 was not pressed either before the trial Court or before the appellate Court which was regarding genuinity of sale deed executed by Md. Hussain and Md. Ahmed in favour of the defendant on 2.1.1969. Other importnat issue was issue No. 4 as to whether the plaintiff is entitled for declaration of title in respect of Schedule C land.;