RAHMAT GONI Vs. MRS. MEHERUN NESSA

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 30.07.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 16 of 2002 discharging the Rule.

(2.) Short facts are that the plaintiff filed Title Suit No.33 of 1998 in the Court of Senior Assistant Judge, 3rd Court, Dhaka for declaration of title in respect of 8 annas share of 'Ka' schedule property on the basis of Heba-bil-ewaj deed dated 07.12.1982 and for further declaration that the cancellation of deed No.2809 dated 29.09.1997 and the Exchange deed No.7793 dated 29.10.1997 were illegal, collusive, void and not binding upon the plaintiff and the defendants acquired no title and interest by the subsequent cancellation deed and the exchange deed. The case of the plaintiffs is that the suit land belonged to Osman Gani, father of the plaintiff, who transferred the same to his wife Saleha Khatun (the defendant No.1) by way of heba-bil-ewaj dated 18.03.1969. Saleha Khatun transferred the suit land along with a two storied building and shops in favour of the plaintiff and the defendant No.2 by registered deed of Heba-bil-ewaj dated 07.12.1982. The defendant No.2 had been in possession of a room on the first floor and the plaintiff 1 had been in possession of the shop in the ground floor. The defendant No.2 collected rents from the shop of the scheduled property. But he did not pay the utility bills, rather he misappropriated the money. The plaintiff requested the defendant No.2 to pay the collected rents to her but the defendant No.2 refused. The defendant No.2 tried to grab the whole property in question. The defendant No.2 accordingly created a deed of cancellation dated 29.10.1997 and the deed of exchange dated 19.10.1997 executed by the defendant No. 1. The defendants have got no right, title and possession in the suit land on the basis of those documents.

(3.) The defendant Nos.1-2 contested the suit by filing written statement denying the material allegations made in the plaint. Their case is that Osman Gani, the owner of the suit land transferred the same in favour of defendant No.1 who transferred the self same land in favour of the plaintiff and defendant No.2 by a registered heba-bil-ewaj dated 07.12.1982. Thereafter, the plaintiff and defendant No.2 executed an undertaking on 25.12.1982 in favour of defendant No. 1 in respect of the scheduled property. Subsequently the plaintiff arranged to sell half of the scheduled property and the defendant No.2 protested. The plaintiff also misbehaved with the defendants. The plaintiff also did not lookafter the defendant No. 1. Accordingly the defendant No. 1 decided to cancel the deed of Heba-bil-ewaj dated 07.12.1982 and executed a registered deed of cancellation dated 29.09.1997 and a registered deed of exchange dated 29.10.1997. The defendant No. 1 handed over possession of the suit property in favour of the defendant No.2. The plaintiff is the permissive possessor of the suit land under defendant No. 2.