MD. AFTAB UDDIN Vs. KOSIMUDDIN

JUDGEMENT

(1.) This petition for leave to appeal has been filed against the judgment of April 17, 2005 by a Single Bench of the High Court Division in Civil Revision No.772 of 1994 discharging the Rule obtained against the judgment and decree dated November 11, 1993 of the 1st Court of Additional District Judge, Jhenaidah in Title Appeal No.257 of 1989 dismissing the same and thereby affirming the judgment and decree dated October 31,1989 of the Court of Assistant Judge, Sailakupa, Jhenaidah, in Title Suit No.131 of 1987 dismissing the same. The suit was filed seeking declaration of title in the land in suit measuring 2.06 acres.

(2.) The suit was filed stating, inter alia, that the land in 'Ka' schedule belonged to Fuljan, that the land in 'Kha' schedule has been recorded in the name of Habil and others and he transferred his share in the 'Kha' schedule by a Heba-bil-Ewaz deed dated December 20,1956 to Kholsha Nessa Bibi and Fuljan Bibi, that Fuljan transferred 1.15 acres of land from 'Kha schedule and also transferred her entire share in Ka schedule by deed of gift dated February 8, 1962 to the plaintiff, that possession was delivered to the plaintiff, that R.S. record in respect of 'Ka' schedule land was wrongly prepared in the name of Fuljan Bibi and that as regard the land of 'Kha' schedule R.S. record was wrongly prepared in the name of Habil and others, that Fuljan Bibi and Habil have no interest in the land of the said 'Ka' and 'Kha' schedule and that also they have no possession, that defendants having had denied the title of the plaintiff, he was constrained to file the suit.

(3.) The suit was contested by the defendant Nos. 1, 2, 4 and 5 by filing joint written statement denying the material averments made in the plaint and stating, inter alia, that Fuljan Bibi used to possess the land in suit through her husband Habil who died leaving brother's son, defendant Nos.4 and 5, that Fuljan Bibi was a pardanshin woman and she became ill in the middle of Magh, 1368 B.S. and the plaintiff visited Fuljan Bibi at that time and proposed for her treatment and for that alleged purpose took Fuljan Bibi on 25th Magh, 1368 B.S.to Sailakupa and upon making representation that Fuljan Bibi's signature was necessary for her treatment took thumb impression on certain papers which were blank and upon using those papers the plaintiff had created the deed of gift, that Fuljan Bibi after death of her husband stayed with defendant Nos.4 and 5, that plaintiff has no title and possession in the land in suit, that the plaintiff disclosed about the deed on 8.2.1962 for the first time and thereupon claimed the land, that Fuljan Bibi cancelled the Heba-bil-Ewaz deed by another deed dated January 5, 1963, that Fuljan possessed the land through defendant Nos.4 and 5, that Fuljan transferred 91 decimals of land from plot No. 1596 by the kabala dated August 7,1965 to the defendant No. 1 and also transferred 1.79 acres of land from the 'Kha' schedule by the kabala dated March 28, 1967 to the defendant Nos.4 and 5, that the defendants are in possession of the land in suit and as such the plaintiffs suit is liable to be dismissed.