SAIFUL ISLAM Vs. HASEN ALI

JUDGEMENT

(1.) No substantial question of law was formulated in this case earlier. The substantial question of law which is urged by the learned Advocate for the appellant is that whether the gift is valid under Mohammedan law.

(2.) Heard Mr. B.D. Das, learned Advocate for the appellant. None appears for the respondent.

(3.) The brief facts are as follows : A plot of land measuring 3B-2K-4 lechas covered by dag No. 366 of PP.No. 165 and a plot of land measuring 2 Bighas 8 Lachas covered by Dag No. 415 of P.P. No. 165 originally belonged to Jal Mahmud, the predecessor in interest of the plaintiff, defendant No. 3, 4 and 5 series. The heirs and successors of late Jal Mahmud amicably partitioned the entire plot of land amongst themselves and became owner in possession of 1 bighas 1 katha 18 lechas of land each. As per terms and condition of that settlement, the proforma defendant No. 4 occupied and possessed a plot of land along the northern side of the entire plot of land, proforma defendant No. 6 series occupied and possessed their share which is situated contiguous south of profonna defendant No. 4 to the contiguous south of the plot of land of proforma defendant No. 5 series situates the plot of land belonging to proforma defendant No. 3. Tahiruddin and the plaintiff occupied and possessed the extreme southern parties and the entire plot of land. Proforma defendant No. 3 later on gifted away his share of land orally to the plaintiff and delivered over possession of the same. Thus the plaintiff became owner in possession in respect of 2 bighas 3 kathas 16 lechas of land along the extreme south portion of the entire plot of land. On 6.5.1968 the plaintiff and the proforma defendant No. 4 sold out 1 katha of land each by registered sale deed No. 5952 to the proforma defendant No. 8. Then on 5.5.1973, the plaintiff sold out 10 lechas of land to the proforma defendant No. 8 by a registered sale deed. The plaintiff then sold out 4 kathas 10 lechas of land to proforma defendant No. 8 by a registered sale deed. Thus, the plaintiff sold out 1 bigha 1 katha of land out of the plot of land owned by him and continued to remain as owner in possession in respect of 1 bigha 2 kathas 16 lechas of land as fully described in the schedule Ka to the plaint. The defendant No. 1 Saiful Islam at first forcibly dispossessed the proforma defendant No. 8 from a plot of land measuring of 2 kathas 10 lechas for which the proforma defendant No. 8 instituted a T.S. No. 25/82 and ultimately obtained possession of the plot of land. The defendant No. 1 then on 11.3.1991 in collusion with the defendant No. 2 dispossessed the plaintiff from a plot of land measuring 2 kathas 10 lechas as fully described in the Schedule Ga to the plaint and constructed a thatched hut thereon denying the right, title interest of the plaintiff in respect of the suit land. The plaintiff therefore, instituted this suit with prayer for declaration of right, title, etc., in respect of the entire Ka Schedule land, confirmation of possession of the plaintiff in respect of Kha Schedule land and for delivery of Khas possession of the plot of land mentioned in Schedule Ga to the plaint by evicting the defendants and by removing the structure thereon. The defendant Nos. 1 and 2 contested the suit. The defendants filed written statement; inter alia pleading that they have purchased plots of land belonging to Aziruddin. Tale to Ali and Surhab Ali. The defendants further submitted that Aziruddin sold out 2 kathas lechas of land to Osman Gani and subsequently Osman Gani sold the land to defendant No. 1 on 19.4.1974 by a registered sale deed. The defendants thus claim right title, interest, etc., in respect of the Ga Schedule land.