ABDUL QUDDUS MATABBAR Vs. YOUSUF ALI BAYATI

JUDGEMENT

(1.) This appeal by leave is directed against the judgment and order dated 23.03.1999 passed by a Single Bench of the High Court Division in Civil Revision No.3194 of 1991 making the Rule absolute.

(2.) Short facts are that the plaintiffs instituted Title Suit No.59 of 1983 in the Court of Subordinate Judge (now joint District Judge), Barguna for declaration of title to the suit land measuring 10.47 acres out of 13.14 acres of land stating, inter alia, that 14.33 acres of land recorded in C.S. Khatian No.252 of Mouza Badarkhali originally belonged to Someruddin in 10 annas 13 gondas 1 kara and 1 kranti share and Keamuddin in the remaining 5 annas 6 gondas 2 karas and 2 kranti share. Keamuddin died leaving sons, Mafizuddin, Hamejuddin and Md. Bayati and daughter Lalson Bibi and widow Maiful Bibi. All the heirs of Keamuddin except Md. Bayati and Someruddin jointly sold 13.14 acres of land to Fatik Mollah, Hachon Mollah, Yeasin Molla, Joynal Mollah and Safruddin Mollah by a registered sale deed dated 28th Chaitra, 1330 B.S, at a consideration of Tk. 1200/-. On the same date the said purchasers transferred the self same land to Someruddin, Mofizuddin Bayati and Hamejuddin Bayati by accepting two registered kabuliyats at a salami of Tk. 206/- and at a rental of Tk. 200/- and they granted dakhilas to Someruddin and others accepting rents from them and they continued to possess the said land. Thereafter Someruddin died leaving behind son Mohon Bayati who died leaving behind sons Nizamuddin Mafejuddin and Yousuf and daughters Malencha Bibi, Alekjan and Saferjan and widow Lalson. The said Yusuf is plaintiff No.1 and Alekjan is plaintiff No. 2. Then Nazemuddin died leaving daughter Rabejan and widow Surjaban and Fulson and brothers Safejuddin and Yusuf. Fulson then died leaving daughters Rabejan and Surjaban. Rabejan then died leaving sons Shahjahan, Khaleque, Sohrab and Harun and daughters Hazera and Mania Begum. The heirs of Rabejan are plaintiff Nos.10-15. Mafizuddin died leaving mother Lalson and brother Yusuf. Lalson then died leaving son Yusuf and daughter Alekjan. Malancha died leaving sons Karim and Wahed and daughters Aymon, Safora. Maiman Bibi died leaving sons Golam Kibria and daughters Pakhi Bibi, Sekani Bibi and Feroja. The heirs of Malancha are plaintiff Nos. 16-23. Safurjan died leaving husband Yunus Khan and sons Ismail and Kasem. They are plaintiff Nos.6-8. Mafejuddin died leaving son Belayet and daughter Ay son Bibi and who are plaintiff Nos.4 & 5 and Hamejuddin another executant of the kabuliat is plaintiff No.3. In this way plaintiffs and others acquired 13.14 acres of land out of the C.S. Khatian No.252 and they are in possession of the said land for more than 12 years. The further case of the plaintiffs is that Md. Boyati has been in possession of 1.19 acres of land as he did not transfer his share to Fatik Mollah and others and said Md. Boyati is defendant No.4 in the suit. Land of C.S. Khatian No.252 has been recorded in S.A. Khatian Nos.439, 600,509,694 and 508. In the S.A. Khatian the suit land has been wrongly recorded in the name of the defendants who have no right, title and possession in the suit land. Hence the suit for declaration of their title.

(3.) The defendant No.7 and 8 contested the suit by filing joint written statement and defendant No .9 contested the suit by filing a separate written statement denying the material allegations made in the plaint. Their case, in short, is that Someruddin and Keamuddin sold 13.14 acres of land by a registered kabala dated 28th Chaitra 1330 B.S. to Fatik Mollah and others but on that date the said sellers did not execute any kabuliyat in favour of buyers and the buyers did not settle the said lands to the sellers. Even if such kabuliyats were executed behind back of the buyers those were never acted upon. Fatik Molla and others after purchasing the said land got possession in the suit land and they continued in possession and after their death their heirs have been continuing in possession. The superior landlord filed Rent Suit No. 2489 of 1933 and got a decree and in execution of the said decree landlord auction purchased the land in the name of Falani Sundari wife of one of the auction purchaser landlords. The auction purchaser leased out the land to the heirs of Someruddin and others. The auction sale was set aside. In the revisional settlement the land was recorded wrongly in the name of Falani Sundari. In Certificate Case No.4221 of 1959 filed against the Surabala daughter of Faiani Sundari, one Abdul Aziz purchased the suit land after suppressing all processes. The said auction purchase was set aside by the decree passed on 31.12.1966 in Title Suit No.119 of 1965.