NOORJAHAN AKHTER Vs. A MOTALEB

JUDGEMENT

(1.) This Rule at the instance of the petitioner calls in question the judgment and dated 25-11-1997 passed by learned Subordinate Judge Second Court, Dhaka in Miscellaneous Case No. 29 of 1995 arising out of a partition suit being Title Suit No.3 of 1983 rejecting an application under section 4 of the Partition Act.

(2.) Plaintiff-opposite party No.1 has filed the aforesaid Title Suit No. 3 of 1983 in the Court of the Subordinate Judge, 2nd Court, Dhaka with a prayer for partition on the allegations, inter alia, that one Akhtaruzzaman owned and possessed 2 kathas of land fully described in the schedule to the plaint by virtue of registered sale deed dated 28-5-1957 from one Zehadon Khatoon. After the death of Akhtaruzzaman the said schedule property devolved on the defendant-petitioner and the defendant- opposite party No.2 as his legal heirs defendant petitioner being the daughter and defendant-opposite party No.2 being his sister in equal shares according to Mohammadan Law. While defendant-opposite party No. 2 i.e. the sister of Akhtaruzzaman was continuing as owner in possession in respect of her 8 annas share of the schedule property plaintiff opposite party No.1 purchased her share measuring 20 Chhataks of land including a Chhapra Ghar standing thereon by two sale deeds dated 30-4-1982 and 3-9-1982 and went into possession thereof. Since the schedule property is a non-partitioned ejmali property the plaintiff opposite party No.1 has filed the present suit for partition for undertaking development work on his portion of the suit property.

(3.) The defendant-petitioner has been contesting the suit by filing written statement contending amongst others, that the schedule property being a dwelling house belonging to an undivided family, plaintiff-opposite party No.1 is not entitled to any partition of the schedule property.