Page No.# 1/24 vs Samir Nath And 13 Ors
2021 Latest Caselaw 1043 Gua

                                                        Page No.# 1/24

GAHC010034132014




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : SAO/8/2014

         KHALILUR RAHMAN and 9 ORS.


         2: RABIARA MASUD


         3: ON THE DEATH OF AZIZUR RAHMAN
          HIS LEGAL HEIRS
          RABIYA BEGUM AND ORS.
         VILL-PAIKAN
          P.H.AND P.O.-GUMRA
          DIST. CACHAR

         3.1: RABIA BEGUM
         VILL-PAIKAN
          P.O. AND P.S. GUMRA
          DIST. CACHAR

         3.2: AFJAL HUSSAIN
         VILL-PAIKAN
          P.O. AND P.S. GUMRA
          DIST. CACHAR

         3.3: ASHRAF HUSSAIN
         VILL-PAIKAN
          P.O. AND P.S. GUMRA
          DIST. CACHAR

         3.4: AFSAR ZAMZAM
         VILL-PAIKAN
          P.O. AND P.S. GUMRA
          DIST. CACHAR

         4: ZAMIRUNESSA
                                                      Page No.# 2/24



5: TAHIR AHMED MIRA


6: RANU BEGUM MIA


7: SADIQUE AHMED MIRA


8: NASIR AHMED MIRA


9: DILRUBA MAKRUL


10: RAUSANARA BEGUM KHATUN

ALL SONS AND DAUGHTERS OF LATE WAKIB ALI AND R/O VILL. PAIKAN
P.H. and P.O. GUMRA
DIST. CACHAR

VERSUS

SAMIR NATH and 13 ORS


2:SANJIB NATH


3:SMT. SONALI NATH


4:SMT. RUPALI NATH


5:SMT. SEWALI NATH


6:SMT. ASHIMA NATH


7:SAMBHU NATH


8:SIRAJUDDIN
                                                                              Page No.# 3/24


            9:ABDUL JALIL


            10:ABDUL BARI


            11:RIAZUDDIN


            12:LOKMANUDDIN


            13:HASNA BIBI



            14:MOYNA BIBI
             SONS AND DAUGHTERS OF LT. ARPAN ALI
             R/O VILL.PAIKAN
             P.H. and P.O. GUMRA
             DIST. CACHAR

Advocate for the Petitioner   : MR. N H MAZARBHUYAN

Advocate for the Respondent : MR. S C KEYAL



                                     -Befor e-
                  HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

18.03.2021

                                         ORDER

Heard Mr. Mustafa Jamal Quadir, learned counsel for the appellants, Mr. Sabyasachi Paul Choudhury, learned counsel for the respondent Nos. 1 to 7 and Subhash Chandra Keyal

2) This appeal by the appellants is against the Judgement and Decree dated 27.05.2014 passed in Title Appeal No. 6 of 2011 whereby the learned Civil Judge No. 2, Cachar, Silchar allowed the appeal, set aside the Judgement and Decree dated 23.11.2010 passed by learned Page No.# 4/24

Munsiff No.1, Cachar, Silchar in Title Suit No. 587/2006 (new) [77/1998 (old)], remanded the matter back to the said Court directing it to dispose of the same afresh by giving its decision in the additional issues framed by the appellate Court as well as in the existing issues which were framed by the Trial Court, granting liberty to the Trial Court to take evidence while deciding all the issues, if so chosen, after giving opportunity of hearing to the parties, with further direction to the Trial Court to appoint an Amin Commissioner to inspect and measure the entire suit patta land so as to ascertain the actual possession of the parties.

3) This appeal was initially registered as RSA (Regular Second Appeal). Finding that challenge herein being against an order of remand and not the decree, which is appealable under Section 104 read with Order XLIII Rule 1(u) of the Code of Civil Procedure, following the decision of the Hon'ble Apex Court in the case of Narayan -Vs- Kumaran, reported in (2004) 2 SCC 26, wherein it was held that same standard as to substantial question of law shall also be applicable to such appeal, where the difference is only of form and not of substance; the Court by order dated 03.09.2014 directed to renumber this appeal as SAO (Second Appeal from Order) under No. XLI Rule 11 of the CPC, which was accordingly done.

4) In this appeal by order dated 05.09.2014 two substantial questions of law were framed, which are -

i) Whether the impugned First Appellate Judgement of remanded is vitiated for non-compliance of the Provision of Order XLI Rule 24 the Code of Civil Procedure?

ii) Whether the learned First Appellate Court committed error in not holding that the subsequent suit No. 587 of 2006 is not maintainable?

5) However the Court by in its order dated 05.09.2014 also observed that the appellants shall be at liberty to raise any other substantial question of law at the time of hearing on the matter.

6) For proper adjudication of this matter, certain facts, i.e. the backdrop of this appeal is necessary to be discussed.

7) Present appellants' predecessors, namely, 1) Wakib Ali, son of late Arman Ali, 2) Saiful Nessa wife of Wakib Ali, 3) Faizur Rohman, 4) Khalilur Rohman, 5) Azizur Rohman, 3 to Page No.# 5/24

5 sons of Wakib Ali, resident of Village - Paikan, Porgana - Gumra, District - Cachar filed a Perfect Partition Case being PP Case No. 26/1976-1977 before the Collector of Cachar for their 17 Bighas - 7 Chataks - 13 Gandas out of 29 Bighas - 6 Kathas -15 Chataks comprised in

2nd RS Patta No. 26, Dag No. 31 of Village - Gumra, Mouza-Paikan, District-Cachar. But the

District Collector, Cachar found that land under said Dag No. 31 of 2 nd RS Patta are in joint possession of other land holders as co-pattadars ( ejmali patta holders) and as such by order dated 02.04.1977 passed in said PP Case No. 26/1976-1977 stayed the mutation in favour of those applicants directing them to have their share ascertained in the Civil Court.

8) For the said purpose, the predecessors of the present appellants, i.e. those five applicants, namely 1) Wakib Ali, 2) Saiful Nessa, 3) Faizur Rohman, 4) Khalilur Rohman and

5) Azizur Rohman as plaintiffs preferred a suit before the Court of Assistant District Judge No.2, Cachar, Silchar being Title Suit No. 36/1977 praying for declaration of their ownership in respect of 17 Bighas - 07 Chataks - 13 Gondas of land out of 29 Bighas - 06 Kathas - 15

Chataks of land covered by Dag No. 31 of 2nd R. S. Patta No. 26 at Mouza-Paikan, Pargana- Gumra, District-Cachar.

9) In their said Title Suit No. 36/1977, the five plaintiffs Wakib Ali and four others

arrayed all the co-sharers of the said Dag No. 31 of 2 nd R.S. Patta No. 26 of Paikan, Pargana- Gumra, District-Cachar as defendants, which were defendant Nos. - 1) Faizul Aziz Barbhuiya,

2) Samsul Haque Barbhuiya, 3) Mainul Haque Barbhuiya, 4) Sirajul Haque Barbhuiya, 5) Baburun Nessa, 6) Hasurun Nessa, 7) Jainul Haque Barbhuiya, all sons and daughters of late Abdul Nur and 8) Kulsuma Bibi wife of late Abdul Nur, all resident of Village-Khelma, Pargana- Gumra; 9) Abdul Malik, son of late Ayub Ali, resident of Village-Gobinda Kupa; 10) Rohini Kumar Choudhury, son of late Gauri Kanta Choudhury, resident of Gobina Kupa; 11) Basarat Ali, 12) Mobarak Ali, both sons of late Abbas Ali resident of Paikan; 13) Bihari Charan Suklabaidya, son of late Amrit Charan Suklabaidya, resident of Gumra Bazar, on the death of said Behari Charan Suklabaidya, his successors-in-interest 13(ka) Sri Birendra Suklabaidya, 13(kha) Sri Binod Suklabaidya, 13(ga) Sri Haran Suklabaidya, 13(gha) Sri Santosh Suklabaidya, 13(unga) Sri Pati Suklabaidya, 13(cha) Sri Malati Suklabaidya, 13(sha) Sri Sunati Suklabaidya, 13(ga) and 13(gha) being minors, represented by their own elder brother 13(ka) Page No.# 6/24

Sri Birendra Suklabaidya, resident of Gumra Bazar, Pargana-Gumra; 14) Sasadhar Nath, son of late Sachindra Mohan Nath, resident of Dighir Khal, Pargana-Gumra, on the death of said Sasadhar Nath, his successors-in-interest 14(ka) Smti. Santi Rani Nath, wife of late Sasadhar Nath, 14(kha) Sri Samir Nath, 14(ga) Sri Sanjib Nath, 14(gha) Smti. Sonali Nath, 14(unga) Smti. Rupali Nath, 14(cha) Smti. Shiuli Nath, 14(sha) Smti. Ashima Nath, 14(ja) Sri Sambhu Nath; 14(sha) and 14(ja) both being minors represented by their mother 14(ka) Smt. Santi Rani Nath, resident of Dighir Khal, Pargana-Gumra; 15) Farzan Ali, son of late Asim Mia, resident of Paikan; 16) Manohar Ali, son of Hazi Isai Miya; 17) Azizur Rahman, son of late Nassir Ali, resident of Paikan; 18) Surendra Ch Das, son of late Katu Mani Das, resident of Gobinda Kupa, Pargana-Gumra; 19) Khalilur Rahman, 20) Abdul Jalil, 21) Numam Uddin, 22) Anam Uddin; 19 to 22 sons of late Masraf Ali, 20, 21 and 22 being minors, represented by their own elder brother 19) Khalilur Rahman, resident of Khelma Pargana-Gumra; on the death of Arzan Ali, his successors-in-interest 23) Khudeja Bibi, 24) Mufiza Bibi; 23 & 24 both wives of late Arzan Ali, 25) Siraz Uddin, 26) Abdul Jalil, 27) Abdul Bari, 28) Riazuddin, 29) Rosman Ali; 25 to 29 sons of late Arzan Ali and 26 to 29 being minors represented by their own elder brother 25) Siraz Uddin, 30) Hasna Bibi, 31) Moyna Bibi and 32) Asarun Bibi; 30 to 32 daughters of late Arzan Ali and all 23 to 32 resident of Paikan, Pargana-Gumra, District- Cachar.

10) Amongst the aforesaid defendants - (i) defendant No. 9, Abdul Malik; (ii) defendant No.11, Basarat Ali jointly with defendant Nos. 12, 13 and 16, namely, Mobarak Ali, Bihari Charan Suklabaidya and Manohar Ali; (iii) defendant No. 14(ka) Smti. Santi Rani Nath, wife of late Sasadhar Nath on her behalf and on behalf of defendant Nos. 14(kha) to 14(ja), i.e., all the successors-in-interest of Sasadhar Nath and (iv) defendant Nos. 23, 24, 25, 30 and 31, namely, Khudeja Bibi, Mufiza Bibi, Siraz Uddin, Hasna Bibi and Moyna Bibi, successors-in- interest of Arzan Ali, jointly filed their written statements in the said Title Suit No. 36/1977.

11) The learned Additional District Judge No. 2, Cachar, Silchar by Judgment dated 25.03.1980 and Decree dated 07.04.1980 allowed the said Title Suit No. 36/1977 and decreed the said suit on contest declaring the right and title of the plaintiffs - 1) Wakib Ali, 2) Saiful Nessa, 3) Faizur Rohman, 4) Khalilur Rohman and 5) Azizur Rohman (the predecessors of the

appellants of this apeal) over 17 Bighas - 07 Chataks - 13 Gondas of land in 2nd R. S. Patta Page No.# 7/24

No. 26, Dag No. 31 of Pargana-Gumra, Mouja-Paikan, District-Cachar out of 29 Bighas - 06

Kathas - 15 Chataks of land of said 2 nd R. S. Patta No. 26 of Dag No. 31 of Pargana-Gumra, Mouja-Paikan, District-Cachar.

12) Against the said Judgment dated 25.03.1980 and Decree dated 07.04.1980 passed in said Title Suit No. 36/1977, the defendant Nos. 14(ka) Smti. Santi Rani Nath, 14(kha) Sri Samir Nath, 14(ga) Sri Sanjib Nath, 14(gha) Smti. Sonali Nath, 14(unga) Smti. Rupali Nath, 14(cha) Smti. Shiuli Nath, 14(sha) Smti. Ashima Nath, 14(ja) Sri Sambhu Nath, i.e., the successors-in-interest of late Sasadhar Nath, as appellants, preferred Title Appeal No. 8/1980. However, appellant Santi Rani Nath, wife of late Sasadhar Nath, died during pendency of said Appeal and accordingly her name was deleted from the Title Appeal No. 8/1980.

13) Further, the heirs of defendant Nos. 11, 12, 13, 16 as well as defendant Nos. 23 to 32 also filed the Title Appeal No. 9/1980 against the said Judgment dated 25.03.1980 and Decree dated 07.04.1980 passed in Title Suit No. 36/1977.

14) The Appellate Court, i.e., learned District Judge, Cachar, Silchar by a common Judgment and Decree dated 14.08.1987 (Decree signed on 29.08.1987) dismissed both the Title Appeal Nos. 8/1980 and 9/1980.

15) Being aggrieved with said Judgment and Decree dated 14.08.1987 (Decree signed on 29.08.1987) passed by the Appellate Court dismissing their Title Appeal Nos. 8/1980, the appellants, namely, Samir Nath, Sanjib Nath, Sonali Nath, Rupali Nath, Shiuli Nath, Ashima Nath and Sri Sambhu Nath, successors-in-interest of defendant No. 14 of Title Suit No. 36/1977 late Sasadhar Nath, jointly preferred an appeal before this Court being Second Appeal No. 88/1988.

16) Upholding the concurrent findings of both the Trial Court and the First Appellate Court, this Court by Judgment and Decree dated 19.11.1994 dismissed the said Second Appeal No. 88/1988 and affirmed the Judgment and Decree dated 14.08.1987 (Decree signed on 29.08.1987) passed by learned District Judge, Cachar, Silchar in Title Appeal No. 8/1980 as well as the Judgment dated 25.03.1980 and Decree dated 07.04.1980 passed by Additional District Judge No. 2, Cachar, Silchar in Title Suit No. 36/1977, noted above.

Page No.# 8/24

17) In the meanwhile plaintiff No. 1 of Title Suit No. 36/1977, namely, Wakib Ali expired. After the said Judgment and Decree dated 19.11.1994 passed by this Court in Second Appeal No. 88/1988, successors-in-interest of late Wakib Ali, namely, 1) Faizur Rohman, 2) Khalilur Rohman, 3) Azizur Rohman, 4) Mustt. Zamirunnessa, 5) Mustt. Jobarunnessa, 6) Mustt. Basarunnessa along with their mother 7) Saifulnessa wife of Wakib Ali filed a Perfect Partition Case being PP Case No. 20/1996-1997 before the Collector of Cachar to get partition of their share of 17 Bighas - 7 Chataks - 13 Gondas out of 29 Bighas - 6 Kathas -15 Chataks

comprised in 2nd RS Patta No. 26, Dag No. 31 of Village - Gumra, Mouza-Paikan, District- Cachar as per the decree passed in their said Title Suit No. 36/1977.

18) In the said Perfect Partition Case No. 20/1996-1997, the co-sharers of said land of

Dag No. 31 of 2nd RS Patta No. 26 of Pargana-Gumra, Mouza-Paikan submitted their objection. The Deputy Commissioner, Cachar, following the provisions of the Assam Land and Revenue Regulation, 1886, by orders dated 14.02.1997 and 06.05.1997 passed in said PP Case No. 20/96-97 approved the Saham prepared by the Assistant Settlement Officer giving effect to the partition of land involved in Title Suit No. 36/1977 in favour of the petitioners Faizur Rohman and others.

19) Against the same Samir Nath, Sanjib Nath, Sonali Nath, Rupali Nath, Shiuli Nath, Ashima Nath and Sri Sambhu Nath, successors-in-interest of late Sasadhar Nath filed appeal under Section 147 of said 1886 Regulation before the Assam Board of Revenue, which was registered as Case No. 175RA(C)/1997.

20) Further Md. Siraz Uddin along with his brothers and sisters, namely, Md. Abdul Jalil, Md. Abdul Bari, Md. Riaz Uddin, Md. Lokeman Uddin, Musstt. Hachna Bibi and Musstt. Moyna Bibi, all successors-in-interest of late Arpan Ali also filed appeal under Section 147 of 1886 Regulation before the Assam Board of Revenue, against the said orders dated 14.02.1997 and 06.05.1997 passed by the Deputy Commissioner, Cachar in said PP Case No. 20/96-97 approving the said Saham, noted above, which was registered as Case No. 183RA(C)/1997.

21) Though said Samir Nath, Sanjib Nath, Sonali Nath, Rupali Nath, Shiuli Nath, Ashima Nath and Sri Sambhu Nath, successors-in-interest of late Sasadhar Nath filed said appeal i.e., Case No. 175RA(C)/1997 under 1886 Regulation before the Assam Board of Revenue, but Page No.# 9/24

they as plaintiffs also filed Tile Suit No. 587 of 2006 (new), [77/1998 (old)], before the Civil Judge (Senior Division) No.1 praying amongst others - (i) for a decree declaring that the land described in Schedule II of their plaint is owned and possessed by them since the time of their predecessor Sasadhar Nath; (ii) for a declaration that the land described in the said Schedule II is not liable to be included within "Saham" of the defendant Nos. 1 to 6 and/or

Saham of any other co-sharers of the of the 2 nd RS Patta No. 26 of Mouza-Paikan, Pargana- Gumra, District-Cachar in view of the judgment and Decree in Title Suit No. 36/1977 of the Court of Assistant District Judge No. II, Cachar, Silchar and in Title Appeal No. 8/1980 of the Court of the District Judge, Cachar, Silchar and in Second Appeal No. 88/1988 of this High Court; (iii) for a declaration that Saham prepared and approved in P.P. Case No. 20/1996- 1997 by the Collector-Cachar including the land of Schedule II (described in their plaint) in the Saham of the defendant Nos. 1 to 6 as illegal and against the findings of the Civil Courts noted above and are liable to be cancelled being not executable and (iv) for a declaration that the plaintiffs are in possession of the second Schedule II described in the plaint and for confirmation of their possession.

22) In their plaint in said Tile Suit No. 587/2006, the plaintiffs Samir Nath and six others described Schedule I and Schedule II as follows:

Schedule I All the piece and parcel of land measuring an area of 29 Bighas - 06 Kathas - 15

Chataks appertain to Dag No. 31 of 2nd R. S. Patta No. 26 of Mouja-Paikan, Pargana-Gumra, P.S.-Katigorah, District-Cachar with revenue of 27.50 only.

Schedule II With Schedule I above an area of 08 Bighas - 09 Kathas - 12 Chataks, bounded as under :-

East : Land in possession of the defendant Nos. 1 to 6 in Dag No. 31. West : Land of Dag No. 30 in possession of Monohor Ali and Salimullah. North : Land of Dag No. 31 in possession of Sirajuddin and others. South : Land in possession of the defendant Nos. 1 to 6.

Within the above boundary, land measuring eight Bighas nine Kathas twelve Chataks Page No.# 10/24

only.

23) In their said Title Suit No. 587/2006, the plaintiffs Samir Nath and six others arrayed

1) Md. Faizur Rohman Mira, 2) Md. Khalilur Rohman Mira, 3) Md. Azizur Rohman Mira, 4) Mustt. Zamirunnessa, 5) Mustt. Jobarunnessa, 6) Mustt. Basarunnessa, all are sons and daughters of late Wakib Ali, resident of Paikan, District-Cachar, as Principal defendants and 7) Md. Siraz Uddin, 8) Md. Abdul Jalil, 9) Md. Abdul Bari, 10) Md. Riaz Uddin, 11) Md. Lokeman Uddin, 12) Musstt. Hachna Bibi, 13) Musstt. Moyna Bibi, all sons and daughters of late Arpan Ali; 14) Md. Abdul Hamid Mazumder, son of late Golam Hyder Mazumder of Village-Paikan Pargona and P.O.-Gumra, District-Cachar; 15) Md. Monohar Ali, son of Late Haji Jehai Mia;

16) Md. Moinul Haque Choudhury, son of late Abdul Rahman Choudhury; 17) Sri Haradhan Suklabaidya, 18) Sri Santosh Suklabaidya and 19) Smti. Maloti Suklabaidya, sons and daughters of late Bihari Charan Suklabaidya of village & P.O.-Gumra, P.S.-Katigorah District- Cachar; 20) Md. Abdul Kadir, 21) Md. Abdul Kuddus, 22) Md. Abu Bakker, 23) Md. Fayjal Ahmed, 24) Musstt. Yesha Begam, 25) Musstt. Hajera Begam, 26) Mustt. Layla Begum, all are sons and daughters of Moulana Abdul Malik Laskar of Village-Gobinda Nagar, P.O.-Gumra, P.S.-Katigorah, District-Cachar as defendants.

24) In the said Title Suit No. 587/2006, the principal defendant Nos. 1 to 6 (jointly), defendant Nos. 7 to 13 (jointly), defendant No. 15, defendant No. 16 and defendant Nos. 20 to 25 (jointly) filed their written statements.

25) Further, defendant Nos. 7 to 13 of said Title Suit No. 587/2006, namely, (i) Md. Siraz Uddin, (ii) Md. Abdul Jalil, (iii) Md. Abdul Bari, (iv) Md. Riaz Uddin, (v) Md. Lokeman Uddin,

(vi) Musstt. Hachna Bibi and (vii) Musstt. Moyna Bibi, all sons and daughters of late Arpan Ali also filed a Counter Claim in said Suit praying amongst others - (a) for a declaration of their right, title and interest over the land described in the Schedule A of their Counter Claim and also for confirmation of their possession over the said land; (ii) for a declaration that the land described in the said Schedule A is owned and possessed by them being their valid purchased property of their predecessor and as such not liable to be included within the Saham of principal defendant Nos. 1 to 6 in PP Case No. 20/96-97 or within the land of the present plaintiffs and (iii) for a declaration that Saham prepared and approved in PP Case No. 20/96- 97 by the Collector, Cachar including their entire land in the Schedule A within the claim land Page No.# 11/24

of defendant Nos. 1 to 6 is illegal, inoperative and void.

26) In their Counter Claim in said Tile Suit No. 587/2006, the defendant Nos. 7 to 13, Md. Siraz Uddin and six others described Schedule A of their land as follows:

Schedule A

Land measuring 05 Bighas - 09 Kathas - 10 Chataks in 2nd R. S. Patta No. 26, Dag No. 31 of Mouja-Paikan under P.H.-Gumra, District-Cachar which has been illegally included within the Saham prepared by the Collector, Cachar in PP Case No. 20/96-97, which is bounded by:

North : Land of Dag No. 32 and boundary of Govinda Kupa Mouza. South : Samir Nath and others.

East : Faizul Rahman & others and land of the Counter Claimants. West : Land of Dag No. 30.

27) Against the said Counter Claim of defendant Nos. 7 to 13, the plaintiffs Nos. 1 to 7 of Title Suit No. 587/2006 as well as the principal defendant Nos. 1 to 6 of the said suit filed their respective written statements.

28) In the said Tile Suit No. 587/2006, the Trial Court after hearing the parties framed six issues, which were -

          I)     Whether there is any cause of action for filing the suit?

          II) Whether the suit is maintainable?

          III)         Whether the suit is barred by limitation?

IV) Whether the plaintiff has right, title and possession over the suit land?

V) Whether the schedule II land is not to be included in Saham as per Judgment and decree of T.S. 36 of 1977?

VI) Whether the plaintiffs are entitled to any reliefs and if so, what?

29) In the Counter Claim of the defendant Nos. 7 to 13 filed in the said Tile Suit No. 587/2006, the Trial Court framed the following four issues -

a) Whether the counter-claim is maintainable?

b) Whether the defendant No.7 to 13 has right title and interest and possession Page No.# 12/24

over the land described in Schedule 'A'?

c) Whether the Saham prepared in respect of Schedule 'A' in favour of defendant 1 to 6 is liable to be declared void, illegal and in-operative?

d) To what relief the defendants are entitled?

30) During the trial of said Tile Suit No. 587/2006, plaintiffs examined three witnesses and exhibited some documents and the defendant No.6 examined witnesses. Further, the defendant Nos. 7 to 13, 15 and 16 examined two witnesses and exhibited some documents.

31) In the said Tile Suit No. 587/2006, with regard to the issue No. (I) 'Whether there is any cause of action for filing the suit' the Trial Court, i.e. the Court of Munsiff No. 1, Silchar, Cachar after perusal of the documents available on record and in light of the judgement and order passed in Tile Suit No. 36/1977 found that there was question as to legal right of the plaintiffs to be determined and there was scope for trial and accordingly answered the said issue in affirmative and decided in favour of the plaintiff.

32) With regard to the issue No. (II) 'Whether the suit is maintainable' the Trial Court, on perusal of the records found at the suit was in proper form and manner and accordingly answered the said issue in the affirmative and decided in favour of the plaintiff.

33) With regard to the issue No. (III) 'Whether the suit is barred by limitation' the Trial Court found at the Saham was prepared on 10.04.1997 ant the plaintiffs filed the suit on 25.09.1998 and that the suit concerned was a declaratory suit where the period of limitation is three years and accordingly found that the right to sue accrues from the date of preparation of the Saham. Finding that the suit was well within the limitation, the Trial Court answered the said issue in negative and decided the same in favour of the plaintiff.

34) With regard to the issue No. (IV) 'Whether the plaintiff has right, title and possession over the suit land' the Trial Court after considering the materials available on record an hearing the parties opined that the plaintiffs have their right, title and interest over 08 Bighas

- 09 Kathas - 12 Chataks of land involved in the suit and accordingly answered the said issue in affirmative deciding the same in favour of the plaintiff.

35) With regard to the issue No. (V) 'Whether the schedule II land is not to be included Page No.# 13/24

in Saham as per Judgment and decree of T.S. 36 of 1977' the Trial Court after considering the matter came found that there was no boundary in the schedule land the of the Tile Suit No. 36/1977, whereas the boundary specified in the Saham does not tally with the documents submitted by the defendant Nos. 1 to 6. Though the plaintiffs claim land on the basis of purchase deeds of their predecessor, which were exhibited as Exhibit Nos. 9, 10, and 11, but there were no description of boundaries of land in those deeds/ exhibits. Further, PW.1 Sanjib Nath in his cross examination stated that Exhibit Nos. 9, 10, and 11 does not contain any boundaries and that defendant/DW No. 1, Khalilur Rahman deposed that he did not know the suit land. From the materials available on record the Trial Court also found that it was not absolutely clear that the land of the plaintiffs on specific in the boundaries as being given in the plaint and that the plaintiffs did not ask for inspection and survey of the suit land through the Amin Commissioner so as to verify the boundaries of the land which they possessed. With regard to the question of Saham, the Trial Court opined that the Deputy Collector, Cachar prepared the same on verification as part the respective possession of the parties and since the plaintiff could not establish their compact plot of land with specific boundaries therefore, the said court was compelled to presume that the land shown in the Saham by the said Deputy Collector to be correct and that the same cool stand.

36) With regard to the issue No. (VI) 'Whether the plaintiffs are entitled to any reliefs and if so, what', the Trial Court after considering the entire matter came to the finding that the plaintiffs are entitled to relief for declaration of their title over the suit land measuring 08 Bighas - 09 Kathas - 12 Chataks and accordingly answered the said issue in favourable plaintiffs.

37) With regard to the issue No. (a) of the Counter Claimants/defendant Nos. 7 to 13 'Whether the counter-claim is maintainable', the Trial Court found that there was cause of action for the counter claim and accordingly decided the issue in favour of the counter claimants.

38) With regard to the issue No. (b) of the defendant Nos. 7 to 13 in their Counter Claim 'Whether the defendant Nos. 7 to 13 has right title and interest and possession over the land described in Schedule A, the Trial Court found that though the counter claimants/defendant Nos. 7 to 13 prayed for declaration of their title over 05 Bighas - 09 Kathas - 10 Chataks in Page No.# 14/24

the suit patta, where the suit patta consists of total land of 29 Bighas - 06 Kathas - 15 Chataks, out of which 17 Bighas - 7 Chataks - 13 Gondas had already been declared in favour of the defendant Nos. 1 to 6 in the Tile Suit No. 36/1977 and land measuring 08 Bighas - 09 Kathas - 12 Chataks have been declared in favour of the plaintiffs in the said Tile Suit No. 587/2006 and after that only about 3½ Bighas of land remains with the said suit patta. The Trial Court also found that as per their claim, Arfan Ali, late father of the Counter Claimants/defendant Nos. 7 to 13 purchased the said land of suit patta from Basarat Ali and Mubarak Ali (defendant Nos. 11 and 12 in Tile Suit No. 36/1977) and after the death of their father Arfan Ali, the defendant Nos. 7 to 13 inherited the said land. The Trial Court from the Tile Suit No. 36/1977 found that said Arfan Ali sold his said purchased land to Azizur Rahman, defendant No. 17 of said Tile Suit No. 36/1977, who in turn sold it to the predecessor of the defendant Nos. 1 to 3 (plaintiff of Tile Suit No. 36/1977). Therefore, the Trial Court found that the defendant Nos. 7 to 13 had no right, title and interest over said 05 Bighas - 09 Kathas - 10 Chataks of the suit patta as claimed by them and accordingly answered the said issue in negative and decided the same against the counter claimants.

39) With regard to the issue No. (c) of the counter claimants/defendant Nos. 7 to 13 'Whether the Saham prepared in respect of Schedule 'A' in favour of defendant 1 to 6 is liable to be declared void, illegal and in-operative' the Trial Court after considering the matter came to the conclusion that as the counter claimants could not establish their title over the land as they claimed, therefore, the Saham is not liable to be declared void and illegal.

40) With regard to the issue No. (d) of the defendant Nos. 7 to 13 in their counter claim

(d) 'To what relief the defendants are entitled', after considering the matter and on the basis of his decision with regard to issue Nos. (b) and (c) of the counter claimants, the Trial Court came to finding that the counter claimants/ defendant Nos. 7 to 13 not entitled any relief as prayed by them and accordingly answered the said issue in negative and decided against those counter claimants.

41) Accordingly the Trial Court, Munsiff No.1, Silchar, Cachar by its judgment and order and decree dated 23.11.2010 partly decreed the said Tile Suit No. 587/2006 and partly dismiss the same and further dismissed the counter claim of the defendant Nos. 7 to 13. The Trial Court decreed that the plaintiff have the right, title and interest over land measuring 08 Page No.# 15/24

Bighas - 09 Kathas - 12 Chataks of the suit patta and further decreed that the Saham prepared by the Collector as proper and not liable to be cancelled.

42) Being aggrieved with the judgment and decree dated 23.11.2010 passed in said Tile Suit No. 587/2006, the defendant Nos. 7 to 13/Counter Claimants filed Title Appeal No. 6/2011 against Md. Khalilur Rohman Mira and others, successors-in-interest of Wakib Ali and his wife Saiful Bibi as well as the plaintiffs and other defendants of said Tile Suit No. 587/2006.

43) After perusing the evidence adduced by the parties, both oral and the documentary together with the memo of appeal, the appellate Court came to point of determination - Whether the judgment and decree so passed by the learned Court below is found sustainable both in law as well as in facts?

44) The appellate Court i.e. learned Civil Judge No.2, Cachar, Silchar after hearing parties by judgment and decree dated 27.05.2014 allowed the said Title Appeal No. 6/2011 preferred by the defendant Nos. 7 to 13/counter claimants noted above and set aside the judgment and decree dated 23.11.2010 passed by the Trial Court, learned Munsiff No.1, Silchar, Cachar in said Tile Suit No. 587/2006, remanding the matter to the Court below to dispose of the said suit afresh determining the additional issues so framed by the appellate court besides the existing issues already framed the Court below, granting liberty to the Court below to take evidence while deciding all these issues, if so chosen, after giving the parties an opportunity of hearing. In its said judgment and decree dated 27.05.2014, the appellate Court also observed that as all the contesting parties claimed their respective title and possession over the suit patta, the said Court further directed the Court below to appoint an Amin Commissioner for a thorough inspection, survey and measure of the entire suit patta land to ascertain the actual possession of the parties so as to enable the Court to give a specific decision regarding the dispute.

45) The said appellate Court while remanding the matter to the Court below by its judgment and decree dated 27.05.2014 passed in said Title Appeal No. 6/2011 in addition to the existing issues so framed by the learned Court below, also framed the following issues to settle the same afresh:

Page No.# 16/24

1. Whether the heirs of Gulam Rabbani executed and registered a deed of partition on 24.03.1948 and Hamida Bibi got 10 Bighas land in R.S. Patta No.46 covered by Dag No. 50 and 56 of Mouza Paikan under the Porgona- Gumra,

which was later converted into 2nd RS Patta No.26, to trace out the title of the vendor of the predecessor of the appellant in the suit patta?

2. Whether Arfan Ali sold his land purchased under dee No.1253 to 1956 to Azizur Rahman or sold his other lands purchased under Deed No.2150 of 1962?

3. Whether the counter claimants have possession and tile within a definite boundary and a compact plot as claimed?

4. Whether the present suit is maintainable in view of the pendency of a Revenue Appeal vide No.RA(C) No.183/1997?

5. Whether the present suit is bad for non-joinder of necessary parties?

6. Whether the defendant No. 1 to 6 entitled to claim partition of their share of land measuring 17 Bighas - 7 Chataks - 13 Gondas in the light of the judgment passed in their favour in Title Suit No. 36/1977?

46) Being aggrieved with said judgment and decree dated 27.05.2014 passed by learned Civil Judge No.2, Cachar, Silchar in Title Appeal No. 6/2011, successors-in-interest of Wakib Ali and his wife Saiful Bibi, namely, Md. Khalilur Rohman Mira and others (principal defendant Nos. 1 to 6 of said Tile Suit No. 587/2006) preferred this appeal.

47) Perused the records of Second Appeal No. 88/1988 disposed of on 19.11.1994 available with the record room of this Court that consists of plaint and written statements of the parties in Tile Suit No. 36/1977, its judgement, copy of Memo of Appeal of Title Appeal of 8/1980, common judgment passed in said Title Appeal, the relevant decrees in said suit and appeal as well as the Judgment passed in said Second Appeal No. 88/1988. Also perused copy of the plaint of Title Suit No. 587/2006, written statement of its defendants, written statements of plaintiffs and defendant Nos. 1 to 6 with regard to Counter Claim of defendant Nos. 7 to 13, judgement passed by the concerned Trial Court in the said Title Suit No. 587/2006 as well as in the said counter claim, judgment passed in Tile Appeal No. 6/2011.

Page No.# 17/24

48) The land of 2nd R. S. Patta No. 26 Dag No. 31 of Mouja-Paikan, Pargana - Gumra, P.S.- Katigorah, District - Cachar i.e., the suit patta consists of 29 Bighas - 06 Kathas - 15 Chataks. The same was originally appertain to Dag No. 50 of R. S. Patta No. 46, curved out from Dag No. 566 of C.S. Patta No. 26. Fazal Mia was the original owner of land measuring 150 Bighas - 15 Kathas of land in the aforesaid pattas, including the suit patta. Said Fazal Mia died leaving behind his wife Nur Bibi and son Gulam Rabbani. Gulam Rabbani son of Fazal Mia enjoyed the said properties, got his name mutated and he died leaving behind his mother Nur Bibi (wife of Fazal Mia), two sons - Abdul Noor and Abdul Sukur, three daughters

- Hamida Bibi, Fatima Bibi and Sarifa Bibi and his wife Aftai Bibi. Sarifa Bibi, daughter of Gulam Rabbani died without leaving any heir and her property devolved on her brothers, sisters and mother.

49) The case of the defendant Nos. 7 to 13/counter claimant in said Title Suit No. 587/2006 as well as in their Counter Caliam and the Title Appeal No. 6/2011, namely, Md. Siraz Uddin, Md. Abdul Jalil, Md. Abdul Bari, Md. Riaz Uddin, Md. Lokeman Uddin, Musstt. Hachna Bibi and Musstt. Moyna Bibi, successors-in-interest of Arpan Ali, was that one Fajal Mia was the original owner and possessor of land measuring 29 Bighas - 06 Kathas - 15 Chataks as described in Schedule-1 to the plaint. Subsequently, the entire land was inherited by his heir Gulam Rabbani and others. After the death of said Gulam Rabbani his two sons - Abdul Noor and Abdul Sukur along with his wife Aftai Bibi and three daughters - Hamida Bibi, Sarifa Bibi and Fatima Bibi inherited the property. They amicably partitioned the land amongst all vide Registered Deed of amicable partition on 24-03-1948. Accordingly, Hamida Bibi got 8 Bighas - 12 Kathas - 10 Chataks of land under Dag No. 50 of R. S. Patta No. 46 and land

measuring 1 Bigha - 7 Kathas - 6 Chataks in Dag No. 56 of the same patta. During 2 nd Re-

settlement Operation, the 2nd RS Patta No. 26 was curved out of aforesaid R. S. Patta No. 46 comprising the entire land of 29 Bighas - 06 Kathas - 15 Chataks in Dag No. 50 of R.S. Patta No.46. Accordingly, Hamida Bibi was the owner in possession of 8 Bighas - 12 Kathas - 10 Chataks of land in new patta No.26 and Dag No.31. Said Hamida Bibi sold her entire patta land in favour of one Yusuf Ali on 05.02.1952. Subsequently, said Yusuf Ali sold the land to one Basarat Ali and Mubarak Ali vide registered Deed dated 09-11-1959. Said Basarat Ali and Mubarak Ali sold 5 Bighas - 9 Kathas - 10 Chataks to Arfan Ali in the present suit Dag and Page No.# 18/24

Patta by a registered sale Deed dated 31-03-1965 and the said Arfan Ali continued to possess the same in northern side of the dag along with other lands purchased from Turpan Ali on 22- 12-1996. Said Arpan Ali died leaving behind the defendant Nos. 7 to 13/counter claimants/appellants as his legal heirs and they have been possessing and owning the land without any disturbance. The defendant Nos. 7 to 13/counter claimants also claimed that defendant Nos. 1 to 6 of Title Suit No. 587/2006 never challenged their title and possession in the Title Suit No. 36/1977. But, those defendant Nos. 1 to 6 while preparing the Saham collusively included the entire land of those defendant Nos. 7 to 13/counter claimants for which they filed the appeal before the Assam Board of Revenue vide Case No.183/1997 and the same is still pending.

50) It is to be noted herein that plaintiffs of said Tile Suit No. 587/2006, involved in this appeal were the defendant Nos. 14 (kha) to 14 (jha), successors-in-interest of defendant No. 14, late Sasadhar Nath in the Tile Suit No. 36/1977. Those plaintiffs of said Tile Suit No. 587/2006 also filed Title Appeal No. 8/1980 against the judgment dated 25.03.1980 and decree dated 07.04.1980 passed by learned Assistant District Judge No. 2, Cachar, Silchar in said Title Suit No. 36/1977, that was dismissed by a common judgment and decree dated 14.08.1987 (Decree signed on 29.08.1987) passed by learned District Judge, Cachar, Silchar. Against the same the plaintiffs of Tile Suit No. 587/2006, involved in this matter, preferred Second Appeal No. 88/1988, which was also dismissed by this Court by judgment and decree dated 19.11.1994.

51) It is also to be noted herein that the defendant Nos. 7 to 13 of said Title Suit No. 587/2006, namely, Md. Siraz Uddin, Md. Abdul Jalil, Md. Abdul Bari, Md. Riaz Uddin, Md. Lokeman Uddin, Musstt. Hachna Bibi and Musstt. Moyna Bibi, successors-in-interest of Arpan Ali, who filed the counter claim in the said suit and also filed the Title Appeal No. 6/2011 noted above, involved in this appeal, were the defendant Nos. 25 to 32 in the Title Suit No. 36/1977. They along with defendant No. 11, Basarat Ali; defendant No. 12, Mubarak Ali; defendant No. 13, Behari Charan Suklabaidya, defendant No. 16, Manohar Ali, defendant No. 23, Khudeja BiBi and defendant No. 24, Mufiza Bibi of Title Suit No. 36/1977 filed Title Appeal No. 9/1980 against the judgment dated 25.03.1980 and decree dated 07.04.1980 passed by learned Assistant District Judge No. 2, Cachar, Silchar in said Title Suit No. 36/1977 that was Page No.# 19/24

dismissed by a common judgment and decree dated 14.08.1987 (Decree signed on 29.08.1987) passed by learned District Judge, Cachar, Silchar.

52) Said Md. Siraz Uddin, Md. Abdul Jalil, Md. Abdul Bari, Md. Riaz Uddin, Md. Lokeman Uddin, Musstt. Hachna Bibi and Musstt. Moyna Bibi, successors-in-interest of Arpan Ali, defendant Nos. 25 to 32 in the Title Suit No. 36/1977 and appellants of Title Appeal Nos. 9/1990, who are also the defendant Nos. 7 to 13/counter claimants of Title Suit No. 587/2006 as well as the appellants of Title Appeal No. 6/2011 noted above did not assail the said common judgment and decree dated 14.08.1987 passed by learned District Judge, Cachar, Silchar in Title Appeal Nos. 8/1990 and 9/1980 before any higher forum and accordingly, the said finding of the learned District Judge, Cachar, Silchar in Title Appeal No. 9/1980 as well as the finding of the learned Assistant District Judge No. 2, Cachar, Silchar in said Title Suit No. 36/1977, by efflux of time has become final and absolute against those defendant Nos. 7 to 13/counter claimants of Title Suit No. 587/2006.

53) Principal defendant Nos. 1 to 6 of said Title Suit No. 587/2006, namely, Md. Faizur Rohman Mira, Md. Khalilur Rohman Mira, Md. Azizur Rohman Mira, Mustt. Zamirunnessa, Mustt. Jobarunnessa and Mustt. Basarunnessa are sons and daughters as well as successors- in-interest of Wakib Ali and his wife Saiful Bibi. Said Wakib Ali, his wife Saiful Bibi, their sons Md. Faizur Rohman Mira, Md. Khalilur Rohman Mira, Md. Azizur Rohman Mira together as plaintiffs filed the Title Suit No. 36/1977 before the Court of Assistant District Judge No.2, Cachar, Silchar praying for declaration of their ownership in respect of 17 Bighas - 07 Chataks

- 13 Gondas of land out of 29 Bighas - 06 Kathas - 15 Chataks of land covered by Dag No.

31 of 2nd R. S. Patta No. 26 at Mouza-Paikan, Pargana-Gumra, District-Cachar, about which it is already mentioned above.

54) The learned Assistant District Judge No. 2, Cachar, Silchar by its judgment dated 25.03.1980 and decree dated 07.04.1980 passed in said Title Suit No. 36/1977, decreed right and title of its plaintiff over 17 Bighas - 07 Chataks - 13 Gondas of land out of 29 Bighas - 06

Kathas - 15 Chataks of land covered by Dag No. 31 of 2nd R. S. Patta No. 26 at Mouza- Paikan, Pargana-Gumra, District-Cachar.

55) In the said judgment dated 25.03.1980 and decree dated 07.04.1980 passed in said Page No.# 20/24

Title Suit No. 36/1977, the Trial Court came to the finding that share of other co sharers in the suit patta have not been affected in any way by the purchase made by the plaintiffs and that defendant No. 14, father of the plaintiffs of Title Suit No. 587/2006, is also not in possession of any part of the suit land and his interest is also therefore, not affected by the claim of the plaintiffs of Title Suit No. 36/1977.

56) In the said judgment dated 25.03.1980 and decree dated 07.04.1980 passed in said Title Suit No. 36/1977, the Trial Court also came to the finding that Hamida Bibi, daughter of Gulam Robbani sold her interest to one Isub (Yusub) Ali who again sold his purchased land to Basarat Ali, defendant No. 11 and Mubarak Ali, defendant No. 12 of said Title Suit No. 36/1977. Said defendant No. 11 Basarat Ali again sold his purchased land to Arfan Ali and others. Said Arfan Ali again sold the said land to Azizur Rahman, defendant No. 17 of Title Suit No. 36/1977. Said Azizur Rahman sold the land that he purchased from Arpan Ali to Wakib Ali, plaintiff No. 1 of Title Suit No. 36/1977. Again Basarat Ali, defendant No. 11 and Mubarak Ali, defendant No. 12 of said Title Suit No. 36/1977 sold 14 Kathas of land that they purchased from Isub Ali, who purchased it from Hamida Bibi, to Saiful Bibi, plaintiff No. 2 of said Title Suit No. 36/1977.

57) In the common judgment and decree dated 14.08.1987 (Decree signed on 29.08.1987) passed by learned District Judge, Cachar, Silchar in Title Appeal No. 8/1980 that was preferred by the plaintiffs of Title Suit No. 587/2006 as well as Title Appeal No. 9/1980 that was preferred by the defendant Nos. 7 to 13/counter claimants of said Title Suit No. 587/2006 filed against the judgment dated 25.03.1980 and decree dated 07.04.1980 passed by learned Assistant District Judge No. 2, Cachar, Silchar in said Title Suit No. 36/1977, the appellate Court came to the finding that in the suit patta the total land of Hamida Bibi from her father Gulam Rabbani was 17/192 share, measuring 2 Bighas - 19 Kathas - 2 Chataks - 18 Gondas and from her sister Sarifa Bibi (who died without any successor) was 17/192 x 5/6 x 1/6 share, measuring 7 Kathas - 3 Chataks - 9 Gondas, totalling 2 Bighas - 19 Kathas. The appellate Court in said common judgment and decree dated 14.08.1987 passed in Title appeal Nos. 8/1980 and 9/1980 also found that said Hamida Bibi sold her share to one Yusub Ali (Isub Ali), who sold it to Basarat Ali and Mubarak Ali, defendant Nos. 11 and 12 of Title Suit No. 36/1977 and that defendant No. 11 Basarat Ali sold his share to Arman Ali, who in Page No.# 21/24

turn sold it to defendant No. 17 of Title Suit No. 36/1977 Azizur Rahman and said defendant No. 17 sold the same to plaintiff No. 1 Wakib Ali of said of Title Suit No. 36/1977. Further said defendant Nos. 11 and 12 of Title Suit No. 36/1977, Basarat Ali and Mubarak Ali sold their remaining share of land that they purchased from Yusub Ali to defendant No. 17 of Title Suit No. 36/1977, Azizur Rahman who in his turn sold 14 Kathas - 8 Chataks to plaintiff No. 2 of Title Suit No. 36/1977, Saiful Bibi.

58) With regard to Title Appeal No. 8/1980, learned District Judge, Cachar, Silchar by his common judgment and decree dated 14.08.1987 found that defendant No. 14 of Title Suit No. 36/1977, Sachindra Mohan Nath, predecessor of the plaintiffs of Title Suit No. 587/2006 as well as the predecessor of the appellants of said Title Appeal No. 8/1980 purchased 2 Bighas - 8 Kathas - 8 Chataks in Dag No. 50 of R.S. Patta No. 46 vide Deed dated 22.06.1951 (Exhibit-E) and said defendant No. 14 was already in possession of the said land being purchaser of it. Said defendant No. 14 of Title Suit No. 36/1977, vide Exhibit-F,

purchased 1 Bigha - 4 Katha - 4 Chataks in 2 nd R.S. Patta No. 26, Dag No. 31 from Sakina Bibi, wife of Mantez Ali. The plaintiffs of Title Suit No. 36/1977, principal defendant Nos. 1 to 6 of Title Suit No. 587/2006, who are successors-in-interest of those plaintiffs had no dispute with the defendant No. 14 of Title Suit No. 36/1977 regarding the possession of the suit land and that the title of the said defendant No. 14 in respect of those parcels of land was not questioned by the plaintiffs of said Title Suit No. 36/1977, as per the finding of the First Appellate Court in the said Title Appeal No. 8/1980.

59) Said Arfan Ali, father of defendant Nos. 7 to 13/counter claimants of said Title Suit No. 587/2006 and appellants of Title Appeal No. 6/2011 has also been named as Arpan Ali as well as Arzan Ali.

60) Now coming back to the substantial questions of law involved in this appeal, it is to be noted herein that Order XLI Rule 24 the Code of Civil Procedure provides that where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon same ground other than that on which the appellate Court proceeds.

Page No.# 22/24

61) The scope of this Rule is limited to cases in which the evidence upon the record is sufficient to enable the Appellate Court to determine the suit. It is seen that both in Title Suit No. 36/1977 as well as in Title Suit No. 587/2006 parties to it have led their evidence and also exhibited relevant documents. By the judgment dated 25.03.1980 and decree dated 07.04.1980 passed in Title Suit No. 36/1977, the Trial Court passed a declaratory right and title of its plaintiff (defendant Nos. 1 to 6 of Title Suit No. 587/2006) over 17 Bighas - 07 Chataks - 13 Gondas of land out of 29 Bighas - 06 Kathas - 15 Chataks of land covered by

Dag No. 31 of 2nd R. S. Patta No. 26 at Mouza-Paikan, Pargana-Gumra, District-Cachar, which was affirmed by common judgment and decree dated 14.08.1987 (Decree signed on 29.08.1987) passed by learned District Judge, Cachar, Silchar in Title Appeal No. 8/1980 as well as by the judgment and decree dated 19.11.1994 passed by this Court in said Second Appeal No. 88/1988, while dismissing the same.

62) The plaintiffs in Title Suit No. 587/2006 claimed that their predecessor purchased the suit land by Exhibits - 9, 10 and 11 Deeds. But on cross examination of plaintiff witness it is evident that those three deeds does not state any boundaries of land. Moreover, the principal defendants also could not identify the suit land involved in said Title Suit No. 587/2006. The plaintiffs of Title Suit No. 587/2006 failed to establish their compact plot of land with specific boundaries and therefore, the land shown in the Saham prepared by the Deputy Collector of Cachar, that was prepared on field verification was found to be correct. By the judgement and decree dated 23.11.2010 passed in Title Suit No. 587/2006, the Trial Court i.e., learned Munsiff No.1, Cachar, Silchar only declared the title of the plaintiffs over the suit land measuring 08 Bighas - 09 Kathas - 12 Chataks.

63) Moreover, the plaintiffs and other defendants of said Title Suit No. 587/2006, except defendant Nos. 7 to 13/counter claimants of the said Title Suit, did not prefer any appeal against the judgement and decree dated 23.11.2010 passed by learned Munsiff No.1, Cachar, Silchar in Title Suit No. 587/2006, which clearly reflects that they are not aggrieved by the same.

64) Further the defendant Nos. 7 to 13/counter claimants of said Title Suit No. 587/2006 failed to establish by adducing evidence that the land measuring 5 Bighas - 9 Kathas - 10 Chataks which their father Arfan Ali / Arpan Ali / Arzan Ali purchased from Basarat Ali and Page No.# 23/24

Mubarak Ali is within the suit patta involved in the case. Further, in the common judgment and decree dated 14.08.1987 (Decree signed on 29.08.1987) passed by learned District Judge, Cachar, Silchar in Title Appeal Nos. 8/1980 and 9/1990, the First Appellate Court came to the finding that in the relevant Dag of the suit patta said Hamida Bibi had total share of 2 Bighas - 19 Kathas and that said Hamida Bibi sold her said share of land to Yusub Ali, who in turn sold it to Basarat Ali and Mubarak Ali, and said Basarat Ali in turn sold his share to Arman Ali, who in turn sold it to defendant No. 17 of Title Suit No. 36/1977, Azizur Rahman and that said defendant No. 17 sold the same to plaintiff No. 1 of Title Suit No. 36/1977, Wakib Ali, father of principal defendant No. 1 to 6 of Title Suit No. 587/2006, i.e. the present appellants.

65) For the above reason this Court is of the opinion that the first appellate Court committed illegality in not deciding the matter on the available evidence and exhibits on record and in remanding the matter back to the Trial Court for fresh consideration.

66) Further, from the materials and record as discussed above, this Court is of the view that subsequent Title Suit No. 587/2006 is maintainable, asit only relates to declaration of tile of the suit land of the plaintiffs.

67) Considering entire aspect of the matter the Judgment and Decree dated 27.05.2014 passed by learned Civil Judge No. 2, Cachar, Silchar in Title Appeal No. 6 of 2011 is set aside and quashed and the Judgement and Decree dated 23.11.2010 passed by learned Munsiff No.1, Cachar, Silchar in Title Suit No. 587/2006 (new) [77/1998 (old)], is hereby upheld. Interim order passed earlier on 05.09.2014 in the connected M.C. No. 2152/2014 stands merged with this order.

68)     Accordingly, the appeal is allowed. No order as to costs.




                                                                 JUDGE
                       Page No.# 24/24




Comparing Assistant