SHAFIULLAH Vs. SULTAN AHMED MIR

JUDGEMENT

(1.) In this appeal the judgment and decree of the High Court Division in First Appeal No. 86 of 1965 has been challenged by the plaintiffs. This arises from Title Suit No. 110 of 1958, renumbered as Title Suit No. 64 of 1959, again renumbered as Title Suit No.15 of 1962, in the Second Court of Subordinate Judge, Comilla. It was a suit, among other things, for declaration of plaintiffs' raiyati right, confirmation of possession and injunction and also for declaration that the relevant C.S. Khatians in favour of the defendants are wrong and without any basis. The suit was decreed by the trial Court by its judgment dated 30 September 1963; on appeal by the defendants, the trial Court's decree was modified and the suit was decreed in part by the impugned judgment of the High Court Division dated 24 November 1981 against which this appeal has been filed by the plaintiffs on special leave granted by us.

(2.) Case of the plaintiffs is that the suit land measuring 7.33 acres was an occupancy raiyati which was originally held by Mohar Ali and Rahimuddin. It was under a Howla-interest known as Howla Karimuddin which was held by Ahmad ullah Dewanji. This Howla was under a Sikimi Taluk known as "Taluk Akber Chowdhury" which was recorded as Touzi No.302 of Pargana Tora of the Comilla Collcctorate. At a later stage the Touzi was renumbered, because of an arrangement between the co-sharers landlords, as Touzi No.3414. Plaintiffs are the heirs of Golam Rahman, one of the three sons of the Howlader, Ahmadullah Dewanji. Golam Rahman purchased the entire raiyati interest from Mohar Ali and Rahimuddin by a registered kabala, Ext.7, dated 22 Poush 1311 B.S., corresponding to 5 January 1905 AD and held it as a raiyat under his father who held the superior Howla-interest, and after the death of his father, he held the raiyati right under the Howladers, namely, heirs of Ahmadullah Dewanji including himself and these facts were duly recorded in the C.S. Khatian No.140 (Ext. 21) which was prepared at a later date. Under this Khatian No.140, there were five khatians namely, Khatians Nos.141 to 145 in which the names of some bargaders of Golam Rahman were recorded. Plaintiffs' case is that by eight barga-kabuliyats those bargaders cultivated the lands for fixed periods and then handed over possession to Golam Rahman, Abdul Gani Mir, predecessor-in-interest of defendants Nos. 2 to 13, was one such bargader and he cultivated the land of C.S. Khatians Nos.141 and 142 under kabuliyat Ext. 1(b); Ahmadullah Munshi, predecessor-in-interest of defendants Nos. 13 to 14, and Jalaluddin, predecessor-in-interest of defendants Nos.37 to 41 barga-cultivated the land of C.S. Khatian No.143 under barga kabuliyats Exts. 1(c), 1(d), 1(e) and 1(f); Maniruddin, predecessor-in-interest of defendants Nos.29 to 34 cultivated the land in C.S. Khatian No.145 under barga kabuliyat Ext.1 (g). The area of Khatian No.140 which is the parent Khatian is 2.69 acres and it was mainly is khas possession of Golam Rahman while the area of the other four khatians is 4.64 acres. As to Khatian No.144, though it is not included in the suit land, it is relevant in this case since it was also given in barga by and returned to, Golam Rahman in the same manner. Case of the plaintiffs is that on the expiry of the terms of these Barga-kabuliyats, the bargaders surrendered their respective professions to Golam Rahman who then cultivated the land as khas, along with the land in parent Khatian No.140.

(3.) Abdul Gani Mir, four years after he had surrendered his barga land, took an Osat settlement (under-raiyati) of two plots of land, Plot No.199, under Khatian No.140 and Plot No.199/1073 of Khatian No.141, from Golam Rahman by executing an Osat Raiyati kabuliyat dated 25 Sraban 1338 B.S. corresponding to 14 August 1931 AD for a total area of 1.08 acres at a rental of Tk. 10/- per year. He also took the land recorded in Plot No. 870 of Khatian No.141 for the purpose of cultivation on receipt of labour charge of Tk.15/- per year under a kabuliyat dated 9 Sraban 1338 B.S. corresponding to 18 August 1931 AD. Plaintiffs claimed that the lands under both these Kabuliyats were also surrendered on the expiry of their respective terms and then held in khas by Golam Rahman. As to the previous raiyats, Mohar Ali and Rahimuddin, as they had no place of residence after the sale of their occupancy raiyati by the sale-deed, Ext.7, they were permitted by Golam Rahman to reside temporarily in Plot No.365 of Khatian No.140 by raising a kutcha structure; in due course Mohar Ali and Rahimuddin vacated the land.