The central legal point established in the judgment is that without a partition, a court cannot confirm exclusive title and possession over a portion of joint property, and it cannot pass a decree for partition beyond the pleadings of the parties.

JUDGMENT

Mir Alfaz Ali, J. - Heard Mr. A Sattar, learned counsel for the appellant and Mr. DP Chaliha, learned counsel for the respondent Nos.3, 5 and 7.

2. This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Nagaon in Title Appeal No.8/2002.

3. This second appeal was admitted to be heard on the following two substantial questions of law:

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1. Whether the judgment and decree passed by the trial Court and affirmed by the appellate court as regards partition of the suit property and for confirmation of possession is in violation of the provisions of Order 20 Rule 18 CPC?

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2. Whether the findings of the court below are perverse for non consideration of the documentary evidence led by the defendants?

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4. The facts leading to the present second appeal may be stated thus:- the land measuring 3 katha, 18 lechas covered by Dag No.1963 and Patta No.88 and land measuring 1 katha, 2 lechas covered by Dag No.1962 and Periodic Patta No.715 total land being 1 bigha in both the dags originally belong to Mofruj, Ayesha, Idrish, Nureja, Sahida Khatun and Ilias, all of them having equal share (1/6th ) Mofruj died leaving behind his wife Ayesha Bibi, son Yunus and daughter Tabiban Nessa. Ayesha Bibi made a gift of her share of land in favour of her son Yunus and accordingly, Yunus has been possessing the said land. Yunus died leaving behind his wife, two sons and three daughters who inherited the property left by Yunus. Ilias Ali, son of Yunus was not heard of for the last 35 years, who was presumed to be dead and his share of land also devolved upon the two daughters and wife of Yunus being proforma defendant Nos. 2, 3 & 7. The proforma defendant Nos.2 & 3 became the owner of the said land as well as houses standing thereon by right of inheritance as well by their own right title and interest. Proforma defendant No.2 Nureja Khatun sold 10 and 508/1152 lechas of land and 257/1152 shares in the house standing on Dag No.1912 by registered sale deed on 05.01.1980. Thereafter on 04.07.1980 Proforma defendant No.3 Sahida also sold 10 & 508/1152 lechas of land and 257/1152 share in the house over Dag No.1912 to the plaintiff by registered sale deed. There were certain mistakes in the sale deed executed on 04.07.1980 which were corrected later on by a rectification deed. The plaintiff thus being the owner of the said land and the share of house as stated above, when applied for mutation of his name, the defendant raised objection, alleging that the plaintiff did not have any right title interest and therefore, the plaintiff filed the suit for declaration of his right title and interest and confirmation of possession. The defendant No.1 contested the suit by filing a written statement. Besides taking legal plea of non joinder of necessary parties for not impleading Ilias Ali, stating that he was still alive, denied the execution of sale deed by Proforma Defendant Nos.2 & 3. The defendant No.1 also challenged the identity of the suit land stating that the suit land has not been described properly in the plaint.

5. The pleaded case of the defendant No.1 was that the total land measuring one bigha of the suit dag and patta originally belonged to six persons namely, Morfuj, idrish, Illias, Ayesha, Shahida and Nureja, having equal shares (1/6th). After death of Mofruj, his share devolved upon his wife Ayesha, son Yunus and daughter Tabiban Nessa. Ayesha made a gift (Hiba-Bil-Raj) of her share in favour of Yunus. Yunus had two wives. Through, his first wife Mariam Nessa, he had two sons namely, Idrish Ali and Ilias Ali and three daughters Sahida, Nureja and Saifun Nessa. The other wife of Yunus was Rufan Nessa, (defendant No.8). Tabibun Nessa transferred her share in the ancestral land and house in favour of her son Abdul Gani, who had been possessing the said land. Yunus during his life time gifted the land measuring 1 katha 2-5/6 lessa from dag No.1912 and PP No.8 and land measuring 7 1/