JUDGMENT :

Heard Mr. G. Saikia, learned counsel for the defendant/ appellants and Mr. G.N. Sahewalla, learned Senior Counsel appearing for the plaintiff/respondents.

2. This regular first appeal under Section 96 read with Order XLI of the Civil Procedure Code, 1908 (for short ‘CPC’) has been preferred against the impugned Judgment and Decree, dated 13.02.2017, passed by the learned Civil Judge, Nagaon, in Title Suit No.82/2012 decreeing the Suit of the plaintiff/respondents herein.

3. The plaintiff/respondents’ case, in a nutshell, is that their predecessor-ininterest and proforma defendants, namely Late Kashi Prasad Bihani was the absolute owner and possessor of a plot of land measuring 1 Bigha, covered by Dag No.548/549, Periodic Patta No.274 (old)/275 at Hojai Kisam No.2, Mouza- Hojai Town, described in Schedule-A (First Part) of the plaint. After acquiring the aforesaid property, said Kashi Prasad Bihani started running one Cinema Hall, namely ‘Sri Laxmi Talkies’ thereon, by forming a partnership firm jointly with his son, the plaintiff No.1/respondent No.1 herein and Smti Kamala Devi Bihani, wife of proforma defendant No. 10 in the original suit, son of Late Kashi Prasad Bihani/proforma respondent No. 14 herein by virtue of a Partnership Deed, dated 11.08.1962.

4. The plaintiff/respondents further contended that after the death of Kashi Prasad Bihani on 24.06.1995, the said partnership firm was reconstituted and the wife of Late Kashi Prasad Bihani, namely Kistoori Devi Bihani (since deceased) was inducted as partner in place of her husband Late Kashi Prasad Bihani jointly with the plaintiff No.1 and said Kamala Devi Bihani/wife of the proforma defendant No.10. Said Kashi Prasad Bihani died intestate and as such, his right, title and interest in respect of the suit property was devolved upon his legal heirs. Accordingly, by virtue of inheritance, all the legal heirs jointly succeeded naturally to the suit property, which included the said cinema hall, namely ‘Sri Laxmi Talkies’ with each having undivided 1/9th share therein. It has been stated that after the demise of said Kashi Prasad Bihani, the suit property was looked after by his eldest son, Jagadish Prasad Bihani, the proforma defendant No. 10 in the original suit/proforma respondent No. 14 herein and the entire income accrued therefrom was utilized for the benefit of their joint family. As on 23.09.2010, said Kistoori Devi Bihani expired, her undivided right, title and interest in the said property was devolved upon her sons and daughters. Thereafter, the plaintiff/respondents came to know that the defendant/appellants purchased illegally the undivided suit land by execution of a number of registered sale deeds from their mother Kistoori Devi Bihani (since deceased).

5. In the above backdrop of facts, the plaintiff/respondents instituted the Title Suit No. 82/2012 seeking the following reliefs-

“(a) Declaration that the plaintiffs continuing to be the joint owners in respect of 63.40% in respect of the suit property and the proforma defendants are the joint owners of 29.24% share thereof, as fully described in the Second Part of Schedule A hereunder written;

(b) Declaration that the defendants being co-owner of a fractional share being 1060 square feet, equivalent to 7.36%, out of the total 14,400 square feet. in respect of the suit property specified in the First Part of Schedule A below, are not entitled to declare themselves to be absolute owners of the suit property;

(c) A decree for partition be passed and direct the Revenue authority to issue separate patta in respect of plaintiff share;

(d) Plaintiffs be put into possession of their share by evicting the defendants, if they are found in possession in plaintiff share;

(e) Permanent injunction restraining the defendants, their men, agents and all servants acting on their behalf and each one of them from dealing with the suit property, including fixtures, fittings machineries and equipments lying therein and/or from sell