NUR NAHAR BEGUM CHOWDHURY Vs. HAZI MOSTAFIZUR RAHMAN

JUDGEMENT

(1.) This appeal, by way of leave, arises out of judgment and decree dated 10.3.1999 passed in Civil Revision No. 3538 of 1993 discharging the Rule affirming the judgment and decree dated 21.11.1993 passed by the learned Additional District Judge, Cox's Bazar in Other Class Appeal No. 59 of1987 affirming those dated 3.8.1987 passed in Other Suit No.175 of 1978 by the learned Assistant Judge, Sadar, Cox's Bazar decreeing the suit.

(2.) The respondents, as plaintiffs, instituted the above suit praying for declaration of title and also recovery of possession of .07 acres of land, being part of land of R.S. Plot No.2543 appertaining to R.S. Khatian No.1109 at Mouza Cox's Bazar as described in the schedule of the plaint, stating inter alia that .14 acres of land of the above R.S. Plot No. 2543 along with other land belonged to Nilamber Chowdhury and he by patta dated 30.3.1936, settled .07 acres of land i.e. the suit land, from the above R. S. Plot No. 2543 along with other land of R.S. Plot Nos. 2537, 2538 and 2541 of the said khatian to Nalini Ranjan Dutta and that aforesaid R.S. plot No. 2543 was wrongly printed twice in the R. S. Map and further R.S. plot No. 2540 was also printed as R.S. plot No. 2543 and that the description as to boundary of the land attached to the schedule of the patta dated 30.4.36 was wrong and that since Nalini Ranjan Dutta was in possession of the suit land the same was recorded in M.R.R. Khatian No. 568 as plot No. 869 and the remaining .07 acres of the said R.S. Plot No. 2543 was recorded in the name of Nur Ali Chowdhury and others; Nalini Ranjan sold out the land of R. S. Plot Nos. 2538,2541 and the suit land to the plaintiff and Nur Ahmed in his turn sold his interest to Saleha Begum, wife of the plaintiff, and that the plaintiff mutated his name and the B.S. Khatian was prepared in his name in spite of the objection of the defendant who has no right, title or possession, in the suit land, in the month of April 1978 the plaintiff was in Dhaka and taking advantage of his absence the defendant forcibly erected structure on the suit land and thereby dispossessed the plaintiff from the suit land. The defendant appellant contested the suit and filed written statements denying the material allegations and contending, inter alia, that the above R.S. Plot No.2543 comprising an area of .14 acres belonged to Nilambar Mahajan who settled .36 acre of land including .14 acres of land of plot No. 2543 to one Mosan Ali by registered patta dated 12.5.1936 and after death of Mosan Ali his heirs sold out their interest in favour of Hossain Ali Medbar, Hakim Ali Chowdhury, Yakub Ali Chowdhury, Noor Ali Chowdhury and Shahar Ali Chowdhury by registered kabala dated 08.10.1937, while the aforesaid Hossain Ali Medbar and others were in possession of the suit land, Hakim Ali Chowdhury and the heirs of Hossain Ali Matbar and Yakub Ali Chowdhury sold out their right, title and interest to the defendant No.1 by kabala dated 19.6.1961 and since then the defendant No. 1 have been in peaceful possession of the same and got a plan approved by Cox's Bazar Pourashava for construction, Nalini Ranjan Datta, was granted settlement of all the lands of the R. S. Plot Nos. 24377 25387 2541 measuring 0.26 acre of land and 3 gondas, i.e. .07 acres of land, from the R.S. Plot No. 2540 and from the boundary of the above .07 acre of R. S. plot No. 2543 as given in the said patta it is clear that Nalini Ranjan Dutta took settlement from plot No. 2540 and not from plot No. 2543; Nalini Ranjan Dutta possessed the lands settled by said patta including .07 acre of R. S. plot No. 2540 situated within the boundary given in the patta more than thirty years and he never took settlement of the suit land and never possessed the same and Nilambar Mohajan never granted settlement of the suit land to Nalini Ranjan Dutta and the plaintiff to grab the suit land, has given a totally different boundary in the schedule of the plaint only to show that the suit land relates to the R.S. plot No. 2543 and not to the Khas Plot No. 2540 wrongly printed as plot No.2543 measuring 0.25 acre only. The learned Assistant Judge, Sadar, Cox's Bazar decreed the suit. On appeal the learned Additional District Judge, Cox's Bazar, after hearing, dismissed the appeal. The defendant then filed Civil Revision No. 3538 of 1993 and after hearing High Court Division discharged the Rule.

(3.) Leave was granted to consider as to whether in view of the evidence of the plaintiff, RW.2, that he has got a hotel named "Niribili" and since the hotel compound, hotel courtyard and the bridge connecting the road as well as the hotel stands on the lands of Plot Nos. 2537, 2538, 2540 and 2541 it is clear that the plaintiff is in possession of the land leased out by Patta dated 30 April 1936 and not on the suit land which is Plot No. 2543 and the High Court Division has failed to consider the same.