ABDUL HASEM AND ORS. Vs. HAJI MAHIUDDIN AND ORS.

JUDGEMENT

(1.) THIS appeal is by Defendants Nos. 2, 3, 4, 5, 7 and 12. Haji Mahiuddin Plaintiff has been impleaded as the main Respondent and the other Defendants have been impleaded as pro forma Respondents.

(2.) PLAINTIFF -Respondent's case in brief is that late Osman the predecessor -in -interest of Defendants Nos. 2 to 5 was his step brother and so was Defendant No. 1 Ahammad Ali. Originally they all belonged to the village Basinda, District Mymensing. The Plaintiff being unable to live with his step mother, separated from his brothers and father at Basinda and then he came to a place known as Chamdhara, District Nowgong, Assam. Coming here he acquired the disputed land with his own money and labour about 34 or 35 years ago and since then he has been enjoying the same. The land was an annual patta land and according to the Plaintiff Respondent the patta was issued in his own name in the last resettlement of 1930 -31. The number of the Special Annual patta was 108. In 1942 -43 the patta No. 108 had been changed into Special Annual Patta No. 110 and was again issued in the name of the Plaintiff. The Defendant No. 1 and late Osman predecessor -in -interest of Defendants Nos. 2 to 5 came to Assam a long time after the Plaintiff had acquired the land, and they were living separately with their father. After the death of Osman the Defendants Nos. 2, 8, 4 and 5 became helpless. The Plaintiff gave them shelter. But they lived in the compound of the Plaintiff separately After some time Ahammad Ali Defendant No. 1 also became financially poor. So the Plaintiff gave him shelter also in his own lands but he was also living separately. They were cultivating his lands. On the 9th January, 1956 Defendant No. 2 Annul Hachem filed a criminal case alleging that the Plaintiff and his sons dispossessed them from the suit land and the Plaintiff and his sons were convicted. On inquiry the Plaintiff came to know that the Defendant in collusion with the Mandal and without the knowledge of the Plaintiff got Chitha mutation, in their favour, in respect of the suit land. The Defendants were denying title of the Plaintiff to the land and thus the Plaintiff brought the suit for a declaration of his title and for confirmation of possession over the disputed land. In the alternative it was also prayed that in case the Defendants were found in possession of the property, the Plaintiff should be, given khas possession over the same.

(3.) THE contesting Respondents have raised an objection to the maintainability of the appeal on the ground that the trial Court decreed the suit against all the Defendants, but Ahmed Ali Defendant No. 1 has not appealed to this Court and thus even if the appeal is allowed, this will result in two inconsistent decrees. The appeal is, therefore, not maintainable, or at any rate, the Appellants cannot get any relief in the present appeal in their favour. In our opinion this objection has no force. The other Defendants have been impleaded as pro forma Respondents in this appeal. As the decree in favour of the present Respondent is on the ground common to all the Defendants, any one of the Defendants could file an appeal and this Court can grant relief to all the Defendants in this appeal. Order 41, Rule 4, Code of Civil Procedure provides: