The validity of tenancy rights and entitlement to partition under the Assam (Temporary Settled Areas) Tenancy Act.

H.N. Sarma, J.

1. This appeal is directed against the judgment and decree dated 15.5.1998 passed in Title Appeal No. 07/1996 by the learned Civil Judge (Senior Division), Cachar, Silchar thereby dismissing the appeal and affirming the judgment and decree dated 22.12.1995 passed by the Sadar Munsiff No. 1, Cachar at Silchar, passed in Title Suit No. 126/1994 decreeing the suit with cost.

2. I have heard Mr. P. Roy, learned Counsel for the appellants/defendants and Mr. B.K. Purkayastha, learned Counsel for the respondents/plaintiffs.

3. The plaintiffs instituted the aforesaid suit praying for declaration of their share of jote and tenancy right over the suit land described at Schedule I specified in Schedule II for a preliminary decree for partition of their share without disturbing the possession of the plaintiffs by restraining the defendants from alienating or changing the nature and feature of the suit land.

4. The claim of the plaintiff is that plaintiff No. 1 Shri Majamil Ali Choudhury @ Abur Rahman Choudhury, predecessor-in-interest of plaintiff No. 2 i.e. late Halima Bibi, Habib Ali defendant No. 1 (since deceased) and late Haris Ali, predecessor-in-interest of plaintiff No. 2 and defendant Nos. 2 and 3, who are sons and daughters of late Makbul Ali took joint settlement of the areas of land measuring 10 Bighas 9 Kathas and 10 Chataks of land described in the schedule from Wakf Estate created by one Major Subedar Jamaluddin Ahmed about 28/29 years back and also used to realize rents from the Landlord in the year 1971 during the operation of the Assam (Temporarily Settled Areas) Tenancy Act, by issuing khatian in their names being khatian No. 2 on having found physical possession over this land as tenants and each of them had their 1/4th as share of 2 Bighas 12 Kathas 6 Chataks and 10 Gandas of land over the suit property.

It is the further case of the plaintiffs that one of the joint tenants, Haris Ali having died leaving his wife and three daughters and as per Muslim Law and the plaintiff in addition to 1/4th share and also inherited became owner and possessor of land measuring 3 Bighas 2 Kathas 8 Chataks 1 Kora 1 Kranti of land belonging to Haris Ali. It is also pleaded that each daughter including Asarunnessa became the owner and possessor of 8 Kathas 11 Chataks 15 Gonda of jote by right of inheritance. The total land belonging to the plaintiffs stands at 6 Bighas 3 Kathas 10 Chataks 19 Gonda 1 Kora 2 Kranti as described in Schedule II of the land.

5. The plaintiffs prayed for a decree for partition of the suit land declaring their rights, title and interest over the same. Defendant No. 1 did not contest the suit and on his death, his heirs filed written statement as defendant Nos. 2 and 3 contesting the suit by filing the statements. Apart from taking usual available plea, it is contended that defendant No 1, Habib Ali his mother, Parina Bibi and his brother, Haris Ali purchased the jote right of both schedule land from one Thambau Singh, tenant under Subedar Major Jamaluddin of Madhurbond in 1958 in respect of the area of land measuring 13 Bighas 13 Kathas 10 Chataks, which is under their possession. As such plaintiff No. 1 not being such a purchaser cannot have any claim of such right over the schedule land. It is also the case of the defendants that the khatian has been obtained by the plaintiffs in collusion with the revenue staff and as such they cannot claim for partition of the suit land. On the basis of the pleadings, learned Court below framed the following issues :

1. Is there any cause of action for this suit?

2. Whether the suit is maintainable?

3. Whether the suit is barred by limitation?

4. Whether the plaintiffs are jote owners and possessors of 6 Bighas 3 Kathas 10 Chataks 19 Gondas 1 Kora 2 Kranti of jote land?

5. Whether the plaintiffs are entitled to partition of their share of jote land over the lands of Schedule 1 of plaint and

6. To what relief/reliefs parties are entitled to?

6. During the course of