SERAJUL HOQUE MAJUMDER Vs. BACHCHU MIA MOJUMDER

JUDGEMENT

(1.) This petition for leave to appeal is against the judgment dated January 13, 2004 of a single Bench of the High Court Division in Civil Revision No. 744 of 1997 making the Rule absolute upon setting aside the judgment and decree dated July 6, 1996 of the 3rd Court of Subordinate Judge (now Joint District Judge) Comilla, in Title Appeal No. 76 of 1994 dismissing the same and thereby affirming the judgment and decree; dated February 28, 1994 of the Court of Assistant judge, Nangalkot, Comilla in Title Suit No. 24 of 1991 decreeing the same. The suit was filed seeking declaration that the judgment and order dated June 29, 1987 passed in Miscellaneous Case (pre-emption) No. 6 of 1984 of the Court of ssistant Judge, Nangalkot was fraudulent and as such liable to be set aside.

(2.) It was the case of the plaintiffs that certain Elahi Baksha had interest to the extent of 8 annas 6 gondas and 2 karas in the property described in the schedule 1 by inheritance from his mother and Elahi Baksha died leaving 2 daughters, by name, Syedennessa and Jobeda Khatun and 2 sons, Hasanuzzaman and Joynal Abedin and a widow by name Khatijan Bibi who died leaving 2 sons, defendant No.1 and another and 2 daughters, that Hasanuzzaman died leaving 3 sons and 3 daughters, that defendant No. 10, daughter of Ellahi Baksha transferred the schedule land to her co-sharer defendant No.9 and he is possessing the same, that defendant No. 9 transferred 26 decimals of land from the land of schedule No.1 to defendant No. 69 by the kabala dated March 4, 1984 and also transferred 12 decimals of land from the land of schedule No.1 by the kabala of the same date to the plaintiffs, that plaintiffs and the defendant No. 69 purchased 38 decimals of land and developed the same by earth; filling and constructed homestead and are possessing the same. Defendant No.1, now deceased, was aware of the purchase, development and possession of the land, that defendant No. 9 is a co-sharer by inheritance. Defendant No.1 since deceased (survived by defendant Nos. 2-8) filed Miscellaneous Case No. 6 of 1984 under Section 96 of the State Acquisition and Tenancy Act on February 26, 1984. Defendant No.9, vendor of the plaintiffs, contested the said case. The Miscellaneous Case was allowed on June 29, 1987 and as against that defendant No.9 filed Appeal being Miscellaneous Appeal No. 88 of 1987 but the defendant No. 9 withdrew the same on being influenced by the defendant Nos.2-8, that the plaintiffs after having had knowledge about the judgment of the Miscellaneous Case filed the suit seeking the relief as stated hereinbefore.

(3.) The suit was contested by the defendant Nos. 1-8 by filing written statement denying the material averments made in the plaint. It was the case of the defendants that the suit so filed was barred by limitation and the suit as framed is not maintainable. It was also the case of the defendants that the kabalas on the basis of which defendant No.96 is claiming the land are ante-dated kabalas and the same have been brought into existence during the pendency of the pre-emption case, that defendant No.9 who contested the case did not disclose about the transfer to the plaintiffs, that plaintiffs were not necessary parties in the re-emption case, that no fraud was committed in obtaining the order in the Miscellaneous case and that the judgment and order passed in the Miscellaneous case is quite legal.