(1.) This petition for leave to appeal arises out of the judgment and order dated 23.2.2005 of a Single Bench of the High Court Division passed in Civil Revision No. 3050 of 2001 discharging the Rule obtained against the judgment and decree dated 22.3.2001 of the learned District Judge, Comilla in Title Appeal No. 254 of 2000 reversing those of dated 19.9.2000 of the learned Senior Assistant Judge, Chandina, Comilla in Title Suit No. 28 of 1999 dismissing the suit.
(2.) The plaintiffs instituted the above suit seeking declaration of their title in the suit land on the averments that the suit land, together with the other lands of CS. Khatian No. 258, originally belonged to Amjad Ali and Jabbar Ali; by amicable partition Amjad Ali possessed the entire land of suit plot No. 2719 and half portion of suit plot No. 2718 and Jabbar Ali possessed the remaining half portion of the above suit plot No. 2718; Amjad Ali died leaving behind two sons, Wahid Ali and Rawsan Ali; Wahid Ali transferred 34 decimals of land in favour of Alimuddin from plot No. 2719 by two registered kabalas dated 10.01.1959 and 31.12.56 and made over possession thereof to him; Rawshan Ali sold 12 decimals of land from plot No. 2719 to Ambar Ali by two registered Kabalas dated 17.01.47 and 18.09.47; Haider Ali sold 15 decimals of land to Ansar Ali from plot No. 2719 and 15 decimals of land from Plot No. 2718 to Alimuddin by registered kabala a dated 20.02.48; Alimuddin while owning and possessing in total 67 decimals of land from Plot No. 2718 and 2719 died leaving behind one son Dud Miah, one wife Joferer Ness a and two daughters. Fulmati and Panmati: Dud Miah, Who on amicable partition with his mother and sisters got the aforesaid 67 decimals of land, transferred 15 decimals of land from Plot No. 2718 and 52 decimals of land from Plot No. 2819 to the plaintiffs by kabala dated 3.5.1993 and since then the plaintiff had been possessing the same, the defendants have no title and possession in any portion of the suit land but they on 25.4.1999 claimed title over the same and hence the suit.
(3.) The defendants contested suit by filing joint written statement contending, inter alia, that the suit has not been properly valued, is barred by limitation and is not maintainable without the relief of partition as well as recovery of possession; Alimuddin while owning and possessing the suit land died leaving behind one son Dud Mia, two daughters Fulmati and Panmati and one wife Joferer Nessa; by amicable partition Fulmati and Panmoti got 51 decimals of land from Plot No. 2719 and subsequently they by kabala dated 27.04.1995 transferred their interest to Ayub Ali, father of the defendant Nos. 1 to 3, and also handed over possession of the above land to him; Ayub Ali died leaving behind three sons, the defendant Nos., 1-3, one wife and four daughters; Dud Miah had no title and possession over the land of Plot No. 2719 and accordingly had no right to transfer any land from the above plot to the plaintiffs; the kabala dated 03.05.93 is fraudulent, inoperative, without consideration and void and the plaintiffs acquired no title and possession by the said kabala.