MD. NAZRUL ISLAM Vs. MONOWARA BEGUM

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment dated January 28, 2004 of a Single Bench of the High Court Division in Civil Revision No. 625 of 1998 making absolute the Rule obtained against the judgment and decree dated November 13, 1997 of the 1st Court of Subordinate Judge (now Joint District Judge), Brahmanbaria in Title Appeal No. 89 of 1994 decreeing the suit upon reversing the judgment and decree dated July 12, 1994 of the Court of Senior Assistant Judge, Nasirnagar, Brahmanbaria in Title Suit No. 38 of 1993 dismissing the Title Suit No. 4 of 1991 same. The suit was filed seeking declaration of title in respect of the land of first schedule and for recovery of khas possession in respect of the land of second schedule upon evicting first group of defendants and for declaring that the kabala described in the 4th schedule is fraudulent, fabricated, illegal and void and not binding on the plaintiffs.

(2.) The suit was filed stating, inter alia, that the land described in the 1st schedule along with other land belonged to Aminuddin and accordingly C.S. record was prepared in his name. Aminuddin gifted some of the properties of the C.S. record to his grandson, defendant Nos. 22-24 and to his granddaughter defendant No. 21. Aminuddin died leaving son Gedu Miah and a daughter Kachchama, that by amicable arrangement Gedu Miah got the land of 1st schedule and he sold the land of 1st schedule to the predecessor of the plaintiffs and his wife, that land of plot No. 188 belonged to Md. Yasin who died leaving the plaintiffs' predecessor Abdul Motalib and the predecessor of defendant Nos. 9-13 as well as defendant Nos. 22-24, that Md. Yasin's property after his death was partitioned amicably. Abdul Motalib was in permissive possession from plaintiff No. 9 in respect of second schedule land and erected hut on the condition that he would surrender possession whenever demand would be made. Abdul Motalib died leaving the plaintiffs and in the property so inherited through Abdul Motalib plaintiffs erected 4 tin shed huts and let out the same, that in 1982 Abdul Karim and Abdul Hamid extended their tenure of their permissive possession and in 1984 they were asked to vacate the property in suit and to shift the huts, that plaintiffs asked for extension of time for 3 months in June 1987, that Abdul Hamid in collusion with Abdul Karim constructed wall surrounding his homestead, that Abdul Hamid died leaving defendant Nos. 2-10 as heirs, that plaintiffs made demand for possession in the year 1989 but the defendants refused, that Title Suit No. 38 of 1983 was filed with the averments that defendant Nos. 21-24 have no title and interest in the land in suit and the sale deed dated October 28, 1980 is a sham transaction and thereby no title accrued in favour of the recipient of the said kabala, that the record of right in respect of the land prepared in the name of Gedu Miah and his heirs was wrong.

(3.) The suit was contested by defendant Nos. 1, 3, 22, 24, 26 and 42-47 by filing joint written statement denying the material averments made in the plaint and stating, inter alia, that Aminuddin son of Khoaj owned and possessed the land of C.S. Dag No. 187/986 and 27 decimals of land of Dag No. 188, that C.S. Khatian No. 87 and 124 were required to be prepared in the name of Aminuddin, Jamiruddin and Yasin but Aminuddin in collusion with the survey officials got the land recorded in his name alone, that Aminuddin inspite of record of right prepared in his name never claimed more than 1/3rd share in the land of C.S. Khatinans, that Aminuddin transferred 3 decimals of land to Siddique Mia and made gift in respect of some of the land of Plot No. 188, that Aminuddin died leaving son Gedu Miah and daughter Kachchama, that Gedu Miah sold 7 decimals of land to defendant Nos. 42-45 and Gedu Miah also sold 3 decimals of land from plot No. 188 and further 3 decimals of land to Champa Bibi. In total Gedu Miah sold 1814 decimals of land and thus exhausted his entire share, that Yasin died leaving 3 sons, Abdul Motalib, Abdul Hamid and Abdul Karim and one daughter Tahera and they possessed the land left by Yasin in ejmali and they purchased 2 decimals of land from Shukur Mahmud, that Abdul Motalib died leaving defendant Nos. 2-10, that Abdul Karim, plaintiffs and defendant Nos. 2-10, used to live in the homestead of Yasin, that in Yasin's portions plaintiffs, defendant Nos. 2-10 and defendant No.1 have huts of different size, that in Khoaj's part his heirs are living.