KATARUDDIN Vs. MD. NURUL HUQUE

JUDGEMENT

(1.) This petition for leave to appeal is directed against, the judgment and order dated 2.5.2005 passed by the Single Bench of the High Court Division in Civil Revision No. 2332 of 2002 discharging the Rule which arose out of the judgment and decree dated 5.5.2002 passed in Other Class Appeal No.120 of 2001 passed by the learned Joint District Judge, First Court, Nilfamari affirming those of dated 5.11.2001 passed in Other Class Suit No. 5 of 2001 by the learned Assistant Judge, Nilfamari, decreeing the suit.

(2.) The respondents, as plaintiffs, instituted the above suit under section 9 of the Specific Relief Act for recovery of the khas possession of the suit land on evicting the defendant petitioners therefrom stating that Bondi Ram Methor, was the owner of 21 decimals of land in Khatian No.30 (old) and out of the same he transferred 8 decimals of land to one Paresh Chandra by registered kabala dated 30.3.1963 and on the same date Bondi Ram also transferred 8 decimals if land to Bachcha Mahmud and Bel Bewa; on 29.4.66 Bachcha Mahmud sold 4 decimals of land to defendant No. 6, Nurul Amin and delivered possession to him; thereafter Bondi Ram sold his remaining 5 decimals of land; Paresh Chandra also sold his 8 decimals of land to defendant Nos.1-4; defendant No.6 sold his 4 decimals of and, the suit land, to the plaintiffs on 23.7.89; the plaintiffs after taking possession of the same mutated their names and paid rent but the defendant Nos. 1-4, on 20,12.96, forcibly dispossessed the plaintiffs therefrom and erected huts thereon and hence the suit. The defendant Nos. 1-4 contested the suit by filing written statements stating that they purchased, in total, 21 decimals of land in Khatian No. 30 form the legal owners of the land and have been possessing the same for more than 30 years by constructing tinshed and also establishing therein a rice and flour mills and on paying rents and taxes; the plaintiff has got no land and structure in the suit land; the defendant No.6 had also no legal interest in the suit land and if the plaintiff got any land from him the same did not confer any right, title and interest upon the plaintiff. The trial court, after hearing, decreed the suit and directed defendant Nos. 1-4 to deliver khas possession of the suit land to the plaintiffs within 30 days on removing the structures erected in the suit land. The lower appellate court after hearing, dismissed the appeal. On revision the High Court Division, after hearing, discharged the Rule.

(3.) As it appears the High Court Division found that the plaintiffs claimed that the defendant No. 6, after his purchase, constructed homestead in the suit land and sold the same to the plaintiffs by two kabalas i.e. Sale Deed Nos. 8636 and 8659, both dated 23.07.89 and after getting possession of the land at the south eastern side the plaintiffs got their names mutated and were possessing the same by paying rents and taxes and the last survey report also discloses so and that the defendant Nos. 1-4, during the absence of the plaintiffs, dispossessed them on the night of 20.12.1996 but on the other hand the defendant Nos. 1-4 claimed that they are in possession of the suit land along with other lands for more than last 30 years by setting up rice and flour mills. The High Court Division found that the trial court, relying on exhibits-3 and 4, the kabalas dated 23.7.89, held that the plaintiffs purchased 4 decimals of land from defendant No.6 who earlier purchased the same from Bacha Mia by Ext. 8, kabala dated 29.8.66, and that the claim of defendants that the said 4 decimals of land was sold to defendant No. 3 Nazrul Islam by kabala dated 25.4.63 has not been proved by producing the said kabala by way of exhibit before the trial court and only a certified copy of the same was submitted without calling for the volume and moreover there is some tampering in the said certified copy of the said kabala and on the other hand defendant No. 6 deposed in favour of the plaintiffs and supported the plaint case and thus the plaintiffs by adducing oral and documentary evidence, succeeded in proving their right, title and interest in the suit land and that they were also in possession of the suit land and subsequently they were dispossessed. The High Court Division further found that the lower appellate court after discussing in details the deposition of the witnesses as well as the documentary evidence found that there is no illegality or infirmity in the judgment and decree passed by the trial court and accordingly affirmed the same. The High Court Division on going through the judgment also found that both the courts below on proper assessment of the evidence on record have come to a concurrent finding and the learned counsel for the petitioner could not show any misreading/non reading of evidence or non-consideration of evidence/materials on record.