(1.) This appeal arises from S.A. No. 26 of 1972 passed by the High Court Division, Comilla on 4.4.83 remanding the case to the first appellate Court allowing the plaintiffs to amend their plaint and for disposal of the same in accordance with law.
(2.) Plaintiff respondents instituted O.C. Suit No. 177 of 1967 in the Additional Court of Subordinate Judge, Noakhali for a declaration that the partition deed executed them and the defendant, Abdul Malek, predecessor of the appellants on 12 March, 1965 and registered on 19 March 1965 was void, fraudulent, illegal and was obtained by misrepresentation. Facts, as stated in the plaint, are: Plaintiff-respondents and Abdul Malek (since deceased) and his father were on friendly relations being residents of neighboring village. In the earlier part of Magh, 1371 B.S. plaintiffs becoming apprehensive of the prevailing tension among the Hindus took shelter in the house of the defendant. Plaintiffs proposed exchange of their properties in Calcutta, India with those of Abdul Malek and accordingly delivered their title deeds and khatians to Abdul Malek and asked him to prepare a power of attorney in his favour. Abdul Malek got the deed prepared which was signed and executed by the defendants on 15 Chaitra 1371 B.S. The deed thus prepared was signed by the defendants without their knowing its contents.
(3.) Towards the end of 1373 B.S. plaintiffs became suspicious and by obtaining the certified copy of the deed on 22 April 1967 found that the defendants got a partition deed instead of the power of Attorney. The deed thus obtained by practicing fraud upon the plaintiffs cast cloud upon their title and hence the plaintiffs filed the suit on 13 December, 1967 as mentioned above. Defendant, Abdul Malek (predecessor the appellant), contested the suit. Defendant had good relations with the plaintiff since be served in a Rubber factory in Calcutta. At the plaintiff's request he purchased in their benami .25 acres of land of Plot No. 138 appertaining to C. S. Khatian No. 64 of Mouza Jadabpur from one Haragobinda Das. Subsequently by 22 different sale deeds during the period beginning from 15 November 1945 to 21 October 1959 defendant purchased several plots in the benami of the plaintiffs. While at Calcutta defendant used to pay the educational expenses of the two sons of plaintiff No.1 and plaintiff No. 2. Plaintiffs, however, transferred most of their properties to the defendant and delivered possession of the same to him.