TUFANU CHOUHAN & ORS. Vs. MD. ABDUR RAHMAN & ORS.

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 18.4.88 passed by the Assistant District Judge, Darrang, Mangaldoi in Title Appeal No. 41/87 dismissing the appeal of the appellants/defendants and affirming the judgmentand decree dated 2.5.88 passed by the learned Munsiff, Mangaldoi in Title suit No. 41/80.

(2.) The suit land together with some other land, originally belong to some Shri Sankar Chouhan, Mohe Chouhan and Sri Sambar Chouhan. One Hazi Arfan Ali purchased more than 25Bs of land including the suit land from the said three persons by registered sale deeds in the year 1962. After purchase Arfan Ali was possessing the suit land with his other lands as owner till Sept., 1967. The proforma defendant No. 6 Kamala Dasgupta and her husband, since deceased, were the citizens of the then East Pakistan. They decided to opt for India. Arfan Ali also decided to opt for East Pakistan. As both the parties were known to each other they decided between themselves to exchange their land with each other and in pursuance to that a sale deed by way of exchange was executed between them on 29.6.67. By that deed (Ext. 3) Naresh Dasgupta and his wife Kamala Dasgupta obtained 25Bs 3Ks 2 Ls of land from Arfan Ali who left for East Pakistan in the last part of 1967. The suit land comprised 16Bs 2Ks 16Ls and is a distinct and separate part of the said total area of land obtained by exchange from Arfan Ali i.e. 25B 3K 2Ls. The plaintiffs have their own land adjacent to the suit land and as such the proforma defendant No. 6 Kamala Dasgupta and Lt Naresh Dasgupta used to possess the suit land mainly through them and some others. After the death of Naresh Dasgupta the suit land devolved entirely on his wife, proforma defendant No. 6 and son Shyamal Dasgupta, proforma defendant No. 7 All the three plaintiffs/ respondents purchased the entire suit land by three separate sale deeds from proforma defendant No. 6 and 7 on 19.2.79. Thus the plaintiffs acquired all the rights and interest over the suit land. After purchase plaintiffs/respondents started ploughing over the suit land, but on 24.3.79 all the principal defendants armed with deadly weapons entered into the suit land and drove out the plaintiffs therefrom. Form that date the principal defendants are forcibly occupying the suit land without any right, title or interest. Hence the plaintiffs brought the suit praying for declaration of title and recovery of khas possession with permanent injunction restraining the defendants from disturbing the plaintiffs possession.

(3.) The defendants/appellants have admitted the plaintiff's case that Arfan Ali has purchased the suit land from the said Chouhans as stated in the plaint. But they disputed the plaintiffs claim of purchase of the suit land from the proforma defendants No. 6 and 7. They claimed actual possession of the suit land under proforma defendant No. 6 and her husband on payment of Rs. 3000.00. Their case was also that defendant No. 1, 2 and 3 and proforma defendant No. 6 and her late husband were neighbours in East Pakistan and all of them were known to Arfan Ali. The defendant No. 1,2 and 3 exchanged their landed property with Arfan Ali and possession by way of exchange on 29.6.67 for 15 Bighas of land. The proforma defendant No. 6 and her husband, through defendant Nos. 1, 2 and 3 exchanged their portion of land in East Pakistan with Arfan Ali in respect of 16B 2K 16Ls of land i.e. the suit land. The defendants Nos. 1, 2 and 3 are proforma defendants, came to an agreement that the defendant would possess and cultivate the land on payment of Rs. 3000.00 to the proforma defendant No. 6 and her late husband and accordingly the defendants paid the amount and got their names mutated in respect of 25B IK 5Ls including their own share of 15Bs of land obtained in exchange with Arfan Ali. The proforma defendants No. 6 and 7 and the plaintiffs, according to the defendants, clandestinely and fraudulently got their names mutated. Defendants objected before the A.S.O. Mangalodi, against the mutation of the name of the plaintiffs and proforma defendants No. 6 and 7.