JUDGMENT :

Heard Mr. P.K. Kalita, learned Sr. Counsel appearing for the appellant/plaintiff. Also heard Mr. A. Biswas, learned counsel for the respondents/defendant.

2. This appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 has been preferred against the impugned Judgment and Decree, dated 31.07.2019, passed by the learned Civil Judge, Morigaon, in T.S. No. 4/2017, whereby dismissed the suit of the appellant/plaintiff.

APPELLANT/PLAINTIFF’S CASE:

3. The case of the appellant/plaintiff in a nutshell is that he and the respondent Nos. 1 to 3, who are his sister, brother in-law and nephew respectively, are co-sharers/co-pattadars of a plot of land measuring 1 Bigha 1 Katha out of 2 Bighas covered by Dag No. 60 of Periodic Patta No. 109 of Moirabari Town Kissam under Moirabari Mouza in the District of Morigaon, Assam, which is hereinafter referred to as the suit land. The appellant and the respondent No. 2 acquired 1 Bigha of the suit land from the previous owner and pattadar, namely Geeta Kumari Borah by right of purchase while the respondent Nos. 2 and 3 acquired rest of the 1 Bigha of the suit land by right of purchase from said Geeta Kumari Borah. The entire 2 Bighas of land was jointly possessed by the appellant and the respondent Nos. 1 to 3 having their respective houses and shops over it, which are rented out to different tenants. But, the respondent Nos. 1 to 3 taking advantage of absence of the appellant, who resides in Guwahati in connection with his profession, sold off 1 Bigha 1 Katha of land out of the 2 Bighas to the respondent Nos. 4 to 6 by executing a sale deed bearing sale deed No. 348, dated 13.02.2017.

4. The appellant invoked his right of pre-emption by performing Talab-i-Mowasibat in the presence of witnesses but the defendant Nos. 4 to 6 refused to reconvey the suit land as has been envisaged under Section 226 of the Mahomedan Law.

5. Having no other alternative, the appellant filed a Title Suit being T.S. No. 4/2017 before the Court of learned Civil Judge, Morigaon. The respondent Nos. 1 to 6 contested the suit by filing written statements.

6. The learned trial Court after consideration of the pleadings framed the following issues-

(1) Whether there is cause of action for the suit?

(2) Whether the suit is barred by law of limitation and other provisions of law?

(3) Whether plaintiff is entitled to pre-emption and khas possession as prayed?

(4) Whether the plaintiff is entitled to decree/relief as prayed for? To what other relief/reliefs plaintiff is entitled?

7. The appellant examined himself as P.W. 1, but, the evidence of the other P.Ws was expunged. After consideration of the pleadings and the evidence on record, the learned trial Court vide Judgment and Decree, dated 31.07.2019 dismissed the suit of the appellant.

ARGUMENTS:

8. Mr. P.K. Kalita, learned Sr. Counsel appearing for the appellant/plaintiff, submitted that the learned trial Court decided the entire suit on the basis of the decision on issue No. 3 without appreciating the evidence on record, but, on the misinterpreted concept of pre-emption under Mahomedan Law. Mr. Kalita submitted that the right of pre-emption is a right of substitution and it prevents the introduction of a stranger into a residential house and to bring the property under one owner. Mr. Kalita further submitted that the learned trial Court decided the aforesaid issue on the basis of adverse presumption without appreciating the contents of the exhibited documents. Mr. Kalita also submitted that the learned trial Court has failed to appreciate the crucial fact that the appellant is the co-sharer/co-pattadar of the suit property (Shafi-i-Sharik) along with the defendants No. 1, 2 and 3. Mr. Kalita, learned Sr. Counsel, has drawn attention to the evidence of P.Ws 2 and 3, who were witnesses to the plaintiff’s conveyance of his intention to exercise the right of pre-emption to the defendants No. 1, 2 and 3 as well as the vendee defendants No. 4, 5 and 6 as