JUDGMENT
D. Biswas, Acting C.J.
1. This Second Appeal is directed against the judgment and decree dated 12.8.1998 passed by the learned Civil Judge, Senior Division No. 1, Cachar in Title Appeal No. 33/96 affirming the judgment and decree dated 27.6.1996 passed by the Sadar Munsiff, No. 3, Cachar, Silchar in Title Suit No. 193/90.
2. The Second Appeal was admitted for hearing on the following substantial question of law :
“Whether the evidence so adduced deciding the “Talaq” matter was admissible and as to whether the finding so arrived at by the learned court below deciding “Talaq” was a finding which can well be said to be perverse and also as to whether the law relating to inheritance under the Mohammadan law was correctly applied while deciding the matter in favour of the respondents/plaintiff relating to the immovable property of one Abdul Jabbar, whose such property was the subject matter of the suit ?”
3. Title Suit No. 193/90 was filed by the plaintiffs for declaration of right, title and interest, for eviction of the defendants from the ‘Kha’ Schedule land and for confirmation of possession over the ‘Ka’ Schedule land appertaining to Dag Nos. 218 and 219 of second re-settlement survey patta No. 86. Abdul Jabbar during his life time purchased the said land by a registered deed of sale executed on 9.6.1922. The plaintiffs and Abdul Jabbar are members of the joint family and all of them have been in possession of the land since 1922. Abdul Jabbar died leaving his son Basiruddin and daughter Mazmilla Bibi. Mazmilla Bibi died unmarried. Abdul Jabbar, during his lifetime, divorced his wife Saida Bibi who after divorce married one Amir Ali. Basiruddin died leaving his son Moinuddin and daughter Salima Bibi. Salima Bibi also died unmarried. Moinuddin, the only surviving son of Basiruddin being a member of the joint family, continued to possess the suit land on his own right as heir of Abdul Jabbar. Moinuddin was unmarried and he died without leaving any heir. Moinuddin lived along with the plaintiffs on the suit land. On his death, the plaintiffs became the exclusive owner and possessor of the suit land and they continued to possess the suit land by paying revenue. Saida Babi, the divorced wife of Abdul Jabbar in collusion with the revenue officials got her name mutated. The names of deceased Mazmilla Bibi and Salima Bibi were not cancelled from the revenue records and their names along with the name of Saida Bibi remained. The defendant No. 1 is the son of Amir Ali who had married Saida Bibi after divorce. The defendant No. 2, wife of the defendant No. 1 along with other defendants have been trying to take over the suit land from the possession of the plaintiffs. On 7.4.1990, the defendants with the help of some persons demolished the house constructed by the plaintiff No. 2 and on 16.11.1990 constructed a house on the ‘Kha’ Schedule land by evicting the plaintiffs. Hence, the suit was filed for declaration of title, confirmation of possession in respect of the ‘Ka’ Schedule land and for eviction of the defendants from the “Kha’ Schedule land.
4. All the defendants contested the suit by filing a joint written statement. They denied all the allegations made in the plaint. According to them, Abdul Jabbar was not a member of the joint family of the plaintiffs. The plaintiffs are residing in their ancestral premises situated on the eastern side of the suit land. According to them, Abdul Jabbar died leaving his wife Saida Bib, son Basiruddin and daughter Mazmilla Bibi and, thus, all of them became owners in possession to the respective share as heirs of Abdul Jabbar. Basiruddin died leaving his son Moinuddin, daughter Salima Bibi and wife Mahmuda Bibi. Amir Ali married Saida after death of Abdul Jabbar and Makbul Ali married Mahmuda. The defendant No. 1 is the son of Saida Bibi and Amir Ali and the defendant Nos. 3 and 4, namely, Must. Begum Bibi and Must. Karibunessa are daughters of Mahmuda Bibi and Makbul Ali. Mahmuda died leaving Moniuddin and daughter Karibunessa and both together lived in the house over the ‘Kha’ Schedule land. After death of Moinuddin, Karibunessa continued to live in the same house along with other heirs of Abdul Jabbar.
5. Upon pleadings, the learned trial Court framed the following issues:-
(i) Whether there is any cause of action ?
(ii) Whether the suit is maintainable in its present form ?
(iii) Whether the plaintiffs are entitled to inherit suit land from Abdul Jabbar after his death when he had his son, wife and daughter ?
(iv) Whether the suit is properly valued and stamped ?
(v) Whether the suit is barred by limitation ?
(vi) Whether the plaintiffs are entitled to any relief ?
The crux of the dispute centers around issue No. 3 which relates to the status of the plaintiffs. The question before the trial Court was whether the plaintiffs have become owner of the suit property purchased by Abdul Jabbar who had died admittedly leaving his son, daughter and wife.
6. There is no dispute between the parties that Abdul Jabbar during his life time purchased the suit land in the year 1922 vide Exhibit-1 and Exhibit-2, the certified copy of the Jamabandi also indicates that Abdul Jabbar was recorded as the Pattadar. The plaintiffs have filed the suit claiming title over the suit land on the ground that Abdul Jabbar lived with them. But the evidence on record discloses that Abdul Jabbar died leaving his son Basiruddin and daughter Mazmilla Bibi as heirs to his property. Besides, the defendants also adduced evidence to show that Abdul Jabbar’s wife Saida Bibi married Amir Ali after the death of Abdul Jabbar. It is, therefore, not discernible as to how the plaintiffs could become owners of the property purchased by Abdul Jabbar to the exclusion of his legal heirs, namely, Basiruddin, Mazmilla Bibi and Saida Bibi. The Courts below do not appear to have discussed and appreciated the issues in their proper perspective. There is practically no effective discussion as to whether Saida had married Amir Ali after divorce by her husband or after death of her husband Abdul Jabbar. The prayer made in the plaint was also for recovery of possession of the ‘Kha’ Schedule land (which is within the ‘Ka’ Schedule land) by demolishing the Kutchha construction (made of bamboo cane) by evicting the defendants. The trial Judge while deciding the issue No. 1 has not recorded any finding about the alleged dispossession of the plaintiff No. 2 from his house on ‘Kha’ Schedule land on 7.4.1990.
7. No issue was framed as to whether Saida Bibi had married Amir Ali after divorce by her husband on after his death. A decision to this effect is necessary to determine the right, title and interest of the defendants. It is apparent that the plaintiffs are not and cannot be legal heirs of Abdul Jabbar who died leaving his son, daughter and wife. The decision rendered by the Courts below appear to be ex-facie perverse. That apart, there is also no evidence to show that Saida Bibi was given Talaq by Abdul Jabbar. The burden was, obviously, on the plaintiffs to prove that Saida Bibi was divorced by Abdul Jabbar and, therefore, she was not entitled to any share of the property left by Abdul Jabbar.
8. The question formulated at the time of admission of this appeal and reproduced hereinabove has to be appreciated in accordance with the principles of inheritance under the Mohammandan Law. Therefore, the judgments of the Courts below suffer from infirmities for which decision afresh is necessary by the first appellate Court which is also a Court of facts. Hence, the impugned judgment and order dated 12.8.1998 passed by the learned Civil Judge, Senior Division No. 1, Cachar in Title Appeal No. 33/96 is hereby set aside. The matter is remanded back to the learned Civil Judge, Senior Division No. 1, Cachar for re-hearing of the appeal and disposal afresh in accordance with the provisions of law.
9. The appeal accordingly stands allowed.
10. No costs.