RSA 143/2011 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The appellant as plaintiff in Title Suit No.231/2007 has filed this appeal chall enging the judgment and decree dated 22nd December, 2010 passed by the learned C ivil Judge, Barpeta in Title Appeal No.3/2010 dismissing the said appeal and aff irming the judgment and decree dated 11th December, 2009 passed by the learned M unsiff No.2, Barpeta in the said suit, whereby and whereunder the suit of the pl aintiff was dismissed. The predecessor-in-interest of the present appellant, namely Ramesh Ch. Barman, instituted the said suit for declaration of right, title and interest in respect of 5 Bighas 2 Kathas 19 Lechas 1 Kani of land under part of Patta Nos.1, 78, 3, 111 of village- Athiabari, Mouza- Gobardhana in the district of Barpeta, Assam and also for recovery of khas possession in respect of Schedule-B land measuring 15‰ Lechas, covered by Dag No.29 of Patta No.111 and Dag No.31 of Patta No.78 o f the said village. It has been pleaded in the plaint that the plaintiff alongw ith 3(three) other brothers, namely Ishan Ch. Barman, Akshay Kr. Barman and Umes h Ch. Barman inherited the land measuring 16 Bighas 0 Katha 5 Lechas 13 Kani fro m their father Kalu Barman and after the death of Umesh Ch. Barman, one of the b rother, who died unmarried, the other 2(two) brothers inherited his share. It h as also been pleaded that by virtue of a partition deed dated 10th March, 1978, the said land was amicably partitioned and an area of land measuring 5 Bighas 2 Kathas 19 Lechas 1 Kani fell in the share of the plaintiff and 5 Bighas 0 Kathas 11 Lechas 11 Kani fell in the share of the predecessor-in-interest of the defen dants, namely Ishan Ch. Barman. According to the plaintiff, as the defendant No .1 on 1st April, 2007 trespassed into the land after dismissal of Title Suit No. 1/1997 filed by him, it necessitated filing of the suit for declaration of right , title and interest and recovery of khas possession. In the plaint, the plaintiff has also pleaded that out of the land fell in his s hare, he sold certain land to others without, however, specifying the quantum of land he sold. The defendant No.1 contested the suit by filling written statement denying the r ight, title and interest of the plaintiff in respect of Schedule-A land measurin g 5 Bighas 2 Kathas 19 Lechas 1 Kani. It has also been pleaded that in fact Tit le Suit No.1/1997 was partly decreed and the defendants were found to be entitle d to 5 Bighas 11 Lechas 11 of land. The execution of the partition deed dated 10 th March, 1978 was also disputed. The learned Trial Court on the basis of the pleadings of the parties framed the following issues for consideration and decision:- 1) Whether there is any cause of action in the present suit? 2) Whether the suit is maintainable in its present form? 3) Whether the plaintiff has right, title and interest over the suit land? 4) Whether the plaintiff is entitled for a decree of khas possession as prayed f or? 5) Whether the defendant No.1 illegally trespassed over the schedule B land? 6) Whether the plaintiff is entitled to the relief/r eliefs prayed for? The learned Trial Court upon appreciation of the evidences on record, dismissed the suit, which though was challenged in the appeal, the same has also been dism issed. Hence the present appeal. I have heard Dr. B. Ahmed, learned counsel for the appellant and Mr. I. Hussain, learned counsel appearing for the respondent No.1. It has been contended by Dr. Ahmed, learned counsel for the appellant that since there is no dispute relating to the partition and consequently that the predece ssor-in-interest of the appellant got 5 Bighas 2 Kathas 19 Lechas and 1 Kani lan d out of the land inherited by the brothers jointly, the learned Courts below ou ght to have declared the right, title and interest of the plaintiff in respect o f the Schedule-A land and recovery of khas possession in respect of Schedule-B l and, the defendant No.1 having trespassed into the land fell in the share of the plaintiff. The learned counsel appearing for the defendant No.1/respondent No.1, on the oth er hand, submits that though the plaintiff claimed that there was partition vide deed dated 10th March, 1978, the said document was never produced and proved by the plaintiff. It has also been submitted that the claim of the plaintiff that he has the right, title and interest in respect of Schedule-A land has been den ied specifically by the defendant No.1 in the written statement and in fact in T itle Suit No.1/1997 filed by the defendant No.1, the Trial Court has decreed the suit of the defendant No.1 in respect of 5 Bighas 11 Lechas 11 Kani. It appears from the impugned judgment and decrees passed that though the plainti ff claimed that there was a partition on 10th March, 1978 and by virtue of that the land described in Schedule-A fell in his share, the same was not proved, as the document has not been produced and proved. That apart, the case of the plai ntiff that land measuring 5 Bighas 0 Katha 11 Lechas 11 Kani fell in the share o f the predecessor-in-interest of the defendants by virtue of such partition, als o was not accepted, in view of the decree passed by the Civil Court in Title Sui t No.1/1997, i.e. the suit instituted by the defendant, wherein the right, title and interest of the defendant No.1 in respect of 5 Bighas 11 Lechas 11 Kani was decreed. The plaintiff’s claim being based on the partition deed dated 10th Mar ch, 1978, he has to prove the document to substantiate the plea, which he has fa iled to do. In view of the above, I do not find involvement of any substantial question of l aw and hence it is dismissed. No costs.