MAZU BIBI Vs. RABEYA BEGUM

JUDGEMENT

(1.) The appeal, by leave, is by the petitioners in the Miscellaneous Case against the judgment dated December 2, 1997 of a Single Bench of the High Court Division in Civil Revision No. 3504 of 1991 making the Rule absolute obtained against the judgment and order dated November 30, 1989 of the Court of District Judge, Magura in Miscellaneous Appeal No. 26 of 1985 setting aside the judgment and order dated May 30, 1985 (Order No. 48 dated 30-5-1985) in Miscellaneous Case No. 214 of 1983 dismissing the same. The Miscellaneous Case was registered upon an application filed on November 6, 1983 under Order IX, rule 13 of the Code of Civil Procedure (CPC) seeking setting aside of the ex parte decree dated September 26,1983 passed in Title Suit No. 849 of 1979.

(2.) The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of possession as to part of the property in suit and for permanent injunction. The suit was filed making averments that land measuring 5.04 acres belonged to and possessed by Zinder Sheikh and Harun Sheikh and in their names CS khatian was prepared, that Zinder Sheikh by amicable arrangement was enjoying 4.23 acres of land and he died leaving 2 sons, i.e. plaintiff Nos.1 and 2 and a daughter plaintiff No.3, that at the time of death of Zinder Sheikh plaintiffs were minor and that immediately after the death of Zinder Sheikh when preparation of record of right was started the plaintiffs being minor they could not get the record prepared in their names and in that state of the matter land in suit was wrongly recorded in the name of the predecessor of the defendants, that as against the wrong record while the plaintiffs were taking step for filing suit the defendants dispossessed the plaintiffs from the 'kha' schedule land in Bhadra 1386 BS although they have no right, title and interest in the land where from they dispossessed the plaintiffs, that plaintiffs have their homestead in 'ka' schedule land and that taking advantage of wrong record of right the defendants are preparing themselves to demolish the plaintiffs' hut and to dispossess them from the 'ka' schedule land and in the aforestate of the matter plaintiffs are constrained to file the suit.

(3.) The defendant Nos.1 and 2 contested the suit by filing written statement denying the material averments made in the plaint and stating, inter alia, that the land in suit belonged to Biddut Lata Sengupta who acquired the same by auction purchase and she transferred the land in suit to Zinder Sheikh who executed a kabuliyat in favour of Biddut Lata Sengupta, that Zinder Sheikh later on transferred the land to Harish Chandra Nani Bala and others and they transferred the land to the defendant Nos.1 and 2 by registered kabala and thus they acquired right, title and interest in the land in suit and accordingly, SA record was prepared in their names, that defendants acquired the right, title and interest in the land in suit by various kabalas, that plaintiffs earlier filed Title Suit No. 418 of 1976 and that while the defendants were contesting the said suit the same was withdrawn, that the plaintiffs have filed the suit making untrue statements, that after service of summons the defendants entered appearance in the Title Suit No. 849 of 1979 and filed written statement.