JUDGMENT :

Mir Alfaz Ali, J.

1. This second appeal by the defendant is preferred against the judgment and decree passed by the learned Civil Judge, Nagaon in Title Appeal No. 10/2009, whereby the learned Civil Jude by reversing the judgment and decree passed by the learned Munsiff in T.S. No. 50/2005, decreed the suit of the plaintiff.

2. The respondent, as plaintiff filed the TS No. 50/2005 for declaration of his share in the ancestral property, partition and separate possession. The case of the plaintiff was that Patta No. 135 originally stood in the name of Podo, Akan and Hareswar and the Patta No. 452 & 456 stood in the name of Santiram, Podo, Akan and Hareswar and all the pattadars have equal share in the land of the aforementioned pattas. The suit land described in Schedule-A of the plaint being land measuring 4B IK 12L of Parta No. 135 (New) 119(01d), land measuring 2B 15L of Patta No. 456 and land measuring 4K17L of Patta No. 452 (New) 261 (Old) fell in the share of Akan, the predecessor in interest of the plaintiff and defendant. The land described in Schedule-B consists of the half of Schedule-A land. The pleaded case of the plaintiff was that the defendant Cheniram Bora and father of the plaintiff late Jaliram Bora were the two sons of Late Akan Bora and the property in the suit pattas, which fell in the share of Akan Bora, devolved upon his two legal heirs i.e. Jaliram Bora and Cheniram Bora. Jaliram Bora died leaving behind the plaintiff, his mother Pamili Bora and four sisters (pro-forma defendants No. 2, 3, 4, 5 & 6). The plaintiff further averred that the proforma defendants No. 2, 3, 4, 5 & 6 relinquished their share in favour of the plaintiff Arun Chandra Bora and thereby enlarged his share in the ancestral property, and as such, the plaintiff is entitled to half share of the property left by Akan Bora. However, the defendant, who is uncle of the plaintiff have been occupying the share of land of the plaintiff and proforma defendants and inspite of repeated request, the defendant refused to give the plaintiff his share in the ancestral property. Therefore, the plaintiff filed the suit seeking declaration in respect of half share in the land left by Akan Bora as described specifically in Schedule-B of the plaint.

3. The pleaded case of the defendant was that Thanuram Bora was the original owner of the land covered by all the suit pattas and Thanuram Bora had three sons, namely, Podo, Akan and Hareswar. During resettlement of 1968-69, the legal heirs of Thanuram Bora were recorded as original pattadars in respect of the suit pattas and all the sons of Thanuram Bora had equal share in the land covered by the suit pattas. It was also the pleaded case of the defendant, that the father of the plaintiff sold 2K of land from his share by registered sale deed No. 1174/58 to the defendant, but in the said sale deed, inadvertently the dag number was mentioned as 412. However, the said land sold by the father of the plaintiff fell in dag No. 314 and 346 as per settlement of 1968-69. Podoram Bora, another son of Thanuram Bora also sold 2B - 14L of land from Dag No. 142(Old)/200(New), 1B 4K-15L from Dag No. 64(01d)/78(New) and 2B-1L from Dag No. 258(Old)/346(New) of Periodic Patta No. 135(New)/239 (Old) by registered sale deed to the defendant. Phatik Bora and Chenaram Bora, both being sons of Hareswar Bora also sold IB from Dag No. 410(Old) and Patta No. 119(01d)/135(New) to the defendant. Besides the above transaction, Phatik Bora and Chenaram Bora relinquished their remaining share of land in Dag No. 314 & 346 in favour of the defendant. Therefore, the defendant was entitled to more land than his usual share in the ancestral property because of purchase from the co-sharers and also relinquishment by some of the co-sharers. The defendant also stated to have purchased IB of land from Nabin Bora, son of Podo Bora. Further case of the defendant was that all the co-sharers having not been made party in the suit, the suit suffers