JAGABANDHU SARKER Vs. JOTISH CHANDRA SIKDER

JUDGEMENT

(1.) This appeal is by the defendant Nos. 1, 2, 6, 7, 9, 10, 12, 14 and 17-19 by leave against the judgment dated November 22,1998 of the High Court Division in Civil Revision No. 705 of 1995 making the rule absolute and thereupon sending the suit back to the trial Court for re-hearing in the light of the observation made by the lower appellate Court and with further direction to the trial court for giving opportunity to the parties to adduce further evidence "if it is at all necessary" and also for fresh consideration of the evidence already on record by the trial Court if so be felt necessary. The Rule was obtained against the judgment and decree dated January 30, 1995 of the Court of Additional District Judge, Madaripur in Title Appeal No. 1 of 1993 affirming the judgment and decree dated October 21, 1992 of the Court of Subordinate Judge (now Joint District Judge), Madaripur in Title Suit No. 4 of 1989.

(2.) The suit was filed seeking declaration of title, confirmation of possession and for declaration that the record of right prepared in the name of the defendants is illegal and fraudulent. The suit relates to 69 acres of land described in the schedule attached to the plaint. Plaintiffs filed the suit stating, inter alia, that their predecessors were the C.S. recorded tenants and that at the time of R.S. survey operation land claimed has been recorded partly in their names and partly in the names of the heirs of the landlord and that during S.A. survey operation 68.94 acres of land of the R.S. Khatians was partly recorded in their names and partly in the name of the defendants in spite of the fact that the plaintiffs are in possession of 64.65 acres of land and the remaining 4.19 acres of land was recorded in the name of defendant No. 1, who purchased the same from the plaintiffs, that on the basis of forged kabuliyat in respect of the land of C.S. Plot Nos. 331 and 350 certain Siddheswar Bala and others filed Title Suit No. 17 of 1962 in the Court of Subordinate Judge, Faridpur and on contest by the plaintiffs the said suit was dismissed and the order of dismissal was upheld up to the Appellate Division.

(3.) The suit was contested by defendant Nos. 1,2,6,7,9,10,12,14 and 17-19 as well as by the defendant Nos. 43,46,57 and 55 by filing separate sets of written statement. The case of the first set of defendants was that plaintiffs' predecessors accepted the kabuliyat dated July 30,1927 from the predecessors of the defendants and while they were in possession certain Prano Nath Barroi and others on the basis of false kabuliyat dispossessed the predecessors of the defendants from some of the land of the kabuliyat of July 30, 1927 and thereupon the predecessors of the defendants filed Title Suit No. 14 of 1941 in the 2nd Court of Subordinate Judge, Faridpur and in that suit plaintiffs' predecessors admitted the genuineness of kabuliyat dated July 30,1927 and the said suit was decreed and-the decree was put to execution by initiating Title Execution Case No. 21 of 1946 and the defendants' predecessors got possession in the land of the said suit, that thereafter certain Siddheswar Bala and others filed Title Suit No. 17 of 1962 in the 2nd Court of Subordinate Judge, Faridpur against the predecessors of the plaintiffs and some of the defendants and the said suit on contest by the plaintiffs of the present suit and the defendants was dismissed, that the defendants are in possession of the land covered by the kabuliyat of July 30, 1927, but plaintiffs managed to get their names recorded in some of the R.S. and S.A. Khatians in collusion with the revenue officials.