GULJAN BIBI Vs. MD. FAZLU MIAH

JUDGEMENT

(1.) Plaintiffs have filed this petition for leave to appeal against the judgment dated May 12, 2004 of a Single Bench of the High Court Division in Civil Revision No.1835 of 1997 making absolute the Rule obtained against the judgment and decree dated March 20, 1997 of the 3rd Court of Subordinate Judge (now Joint District Judge) Sylhet in Title Appeal No. 6 of 1993 allowing the same and thereupon setting aside the judgment and decree dated June 29, 1992 of the Additional Court of Senior Assistant Judge, Sadar, Sylhet in Title Suit No.2 of 1992/295 of 1989 dismissing the same. The suit was filed seeking redemption of an usufructuary mortgage dated 26-12-1927.

(2.) The suit was filed on September 27, 1989. It was the case of the plaintiffs, that land measuring 2.53 acres belonged to 4 brothers, by name Himmat Khan, Rahmat Khan, Hanif Khan and Anis Khan, that Hanif Khan and Anis Khan mortgaged the land in suit by a registered deed of mortgage dated December 26, 1927 for an amount of Taka 48 and that it was stipulated in the mortgage deed that after one year the mortgagors would be entitled to redeem the mortgage in the month of Magh on payment of the balance of the amount, that said Hanif Khan and Anis Khan mortgaged the land of the heirs of Himmat Khan and Rahmat Khan to the predecessor of the defendant Nos. 1-11, Asmot Miah, and since mortgage said Asmot Miah was in possession of the land so mortgaged and that after the death of Asmot Miah, his heirs defendant Nos. 1-11 were possessing the mortgaged land, that in the first part of Magh, 1395 BS plaintiffs requested the defendant Nos. 1-4 to return the land but the defendants refused to do so, that to frustrate the claim of the plaintiffs defendant No. 9 in collusion with the defendant No. 12 created deed of exchange on June 11, 1989 in respect of 8 decimals of land of Plot No. 4346 and the defendant Nos. 5 and 7 in collusion with defendant Nos. 13 and 14 created a deed of sale dated August 31, 1989 for 3 decimals of land from the eastern part of plot No. 4344, that defendant Nos. 2 and 3 in collusion with the defendant Nos.13 and 14 created a deed of sale on September 2, 1989 for 4 decimals of land from the western part of the plot No. 4346, that defendant Nos. 1, 8 and 11 created a deed in respect of 15 decimals of land of plot No. 4346 in favour of the defendant Nos.13-16, that the said deeds are collusive and fraudulent, that the plaintiffs are entitled to recover possession of the suit land as well as usufruct thereof.

(3.) The suit was contested by defendant Nos. 1, 8, 10 and 11, in one group as well as by defendant Nos.13 and 14 and by the defendant No. 12 separately by filing separate sets of written statement. The contesting defendants in their written statement denied the material overments made in the plaint. The case of the 1st group of defendants was that the land in suit belonged to their predecessor and that the same has been possessed by their predecessor for more than statutory period of limitation and thus predecessor of the defendants and they have acquired title by adverse possession, that defendant No.1 upon amicable partition got the entire land of the plot No.4354 and 9 decimals of land of plot No.4344 and he sold 26 decimals of land from plot No.4354 to Ibrahim Ali in 1981 and said Ibrahim Ali resold the land to the defendant No.1, that defendant No. 1 sold 15 decimals of land on August 6, 1989 to defendant Nos.13 and 14 and their brothers Sirajul Islam and Safiqul Islam, that balance 3 decimals of land of the plot land of which was sold to defendant Nos.13 and 14 and their brothers, is possessed by defendant No.9, that defendant Nos. 2-7's predecessor Eklas Mia got 8 decimals of land in his share from the land of plot No.4346 and the heirs of Eklas Mia sold the said land by the kabalas dated August 31, 1989 and September 2, 1989 to defendant Nos.13 and 14, that the land has been recorded in the name of 3 brothers namely, Babur Mia, Moyna Mia and Eklas Mia, that deed of mortgage was executed on 10th Poush, 1334 BS for one year and, as such, the same expired after one year and from the date of such expiry plaintiffs' right to redemption arose but the plaintiffs have filed the suit after lapse of 62 years and, as such, the suit is barred by limitation, that defendant Sufi Mia had not exchanged any land from plot No. 4346 with Shaista Mia on June 11,1989 and that if any deed of exchange is produced the same is forged, false and fabricated, since at the relevant time Sufi Mia was not in the country and that his address shown in the exchange deed is not correct and that the plaintiff Motasir Mia in collusion with the father of Shaista Mia collusively brought into existence the suit for exchange deed, that the plaintiffs are not entitled to get khas possession and their suit is liable to be dismissed.