ASMAT ALI Vs. ALAM MIAH

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 11.05.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 366 of 1999 discharging the Rule.

(2.) Short facts are that the plaintiff instituted Title Suit No. 39 of 1996 in the Court of Assistant Judge, Patharghata, Barguna for declaration of title in the suit land as described in schedule "Kha" of the plaint stating inter alia, that the land measuring 1.99 acres of R.S. Khatian No. 395 of Mouza Limua, P.S. Patharghata, District-Barguna originally belonged to Kashem Ali in 4 annas share, Hemej Uddin and Kanchan Khan in 5 annas 10 gondas share each and Khatijan Bibi in 1 anna share in the reiyati right. Kanchan Khan sold .80 acre of land out of R.S. Khatian No. 395 to the plaintiff by registered kabala dated 24.05.1954. Although Kanchan Khan was entitled to get .68% acre of land in his 5 annas 10 gondas share. Since then the plaintiff has been in possession the suit land. The defendants claimed the suit land on 11.07.1996 on the basis of S.A. record, which is wrong.

(3.) The defendant No. 1 contested the suit by filing written, statement alleging, inter alia, that the suit is not maintainable and the suit is barred by limitation. The case of the defendant, in short, is that the land measuring 2.45 acres of C.S. Khatian No.46 of Mouza Ganoara originally belonged to Moajan and Malik and they sold 12 annas share to Jinnat Khan and 4 annas share to Kashem Ali. Jinnat Khan died leaving Annat Khan and Khatun Bibi as heirs and accordingly his interest in the suit land devolved upon them. Annat Khan died leaving two sons, namely, Hamej and Kanchan and two daughters namely, Asia and Rabiya as heirs. Annat Khan's heirs being owners of 1.32 acres settled the same land to Ajahar and others on 01.05.1950 and the S.A. Khatian was accordingly prepared. The plaintiff's kabala was collusive and forged and the S.A. Khatian recorded owners were not made parties in the suit. So the suit is liable to be dismissed.