NUR MAHAMAD AND ANR. Vs. SHER KHAN AND ANR.

JUDGEMENT

(1.) THIS appeal is by the plaintiffs and is directed against the judgment and decree passed by the Assistant District Judge, Jorhat, in Title Appeal No. 31/71. The suit was for declaration of title in respect of 2 Bighas 16 Lechas of land covered by dag No. 1910 of Periodic Patta No. 383 of Golaghat town.

(2.) THE brief facts are that the suit land originally belonged to late Sahabuddin. He had a daughter Mstt. Saru, who predeceased Sahabuddin, leaving two sons, Nur Mahammad (plaintiff No. 1) and Sher Ali (plaintiff No. 2), and two sons. Sher Khan (defendant No. 1) and Anjan, father of defendant No. 2. Dhan Musalman. The plaintiffs' case is that as Saru had predeceased Sahabuddin, they were taken by Sahabuddin to his house where they were brought up. The plaintiffs' further case is that Sahabuddin. during his lifetime, gifted the suit land to them. Sahabuddin died on 25 -9 -37 and since then they have been possessing the land and have acquired adverse possession as against the defendants. But subsequently they were dispossessed by the defendants by constructing houses on the suit land and hence they filed the instant suit for declaration of their title primarily based on gift, and alternatively based on adverse possession.

(3.) THE learned Munsiff. after trial, did not give any categorical finding on the question of gift, but he has found that the plaintiffs acquired adverse possession of the suit land, on the finding that the plaintiffs were in possession of the land since the death of Sahabuddin in 1937. On appeal the learned lower appellate Court has reversed the judgment and decree of the trial Court. He has found that the plaintiffs have failed to prove the gift and also adverse possession. In that view he dismissed the suit. Hence this second appeal.