MD. SHAMSUL HAQUE Vs. MD. ABDUL JALIL KHAN

JUDGEMENT

(1.) This civil petition for leave to appeal, at the instance of defendant Nos. 1 and 2, is directed against the judgment and order dated 26-06-2002 passed by a Single Bench of the High Court Division in Civil Revision No. 3458 of 1997 making the Rule absolute.

(2.) Facts, leading to this petition, are that the plaintiff-respondent instituted Other Class Suit No. 109 of 1985 praying for permanent injunction restraining the defendants from entering into the suit land or from dispossessing him from the suit land in the Court of Assistant Judge, Ghatail, Tangail. The case of the plaintiff was that Goher Sheikh was the sole owner of the land in C.S. Khatian No. 470 including suit plot No. 601 while his son Modhu Skeikh was in possession. Modhu Skeikh died leaving behind 3 (three) sons namely (1) Jawahar Ali, (2) Bachiruddin and (3) Ahammad Ali, who transferred .09 decimals of land out of 29 decimals of land in favour of C & B authority about 45/46 years back and they remained the owner in possession of the rest .19 decimals of land which they transferred to the Bali Mamud Munshi on 04-11-1943. While Bali Mamud Munshi being in possession of the said land by constructing house thereon and thereafter, he transferred the same to the plaintiff by a sale deed being Deed No. 3120 dated 18-04-1957 and delivered possession thereof to him and since the dated of purchase the plaintiff has been in possession of the suit land with his family member by constructing a house thereon. Subsequently, the plaintiff sold .04 decimals of land out of his aforesaid purchased land to proforma-defendant No. 9 The plaintiff mutated his name and it was duly recorded in the R.O.R. Khatian vide order dated 22-10-1976 passed in Miscellaneous Case No. 1453 (ix-1=6976). The plaintiff has shops in the suit land and he has been paying rent and taxes to the Government; that the defendants threatened to dispossess the plaintiff from the suit land on 28-10-1985 and they also threatened that they would get their names recorded in respect of the suit land with the help of defendant No. 8. Therefore, the plaintiff felt compelled to file the suit.

(3.) The defendant-petitioners contested the suit by filing joint written statement denying all material allegations made in the plaint. The positive case of the defendant Nos. 1 and 2 is that Goher Sheikh was the owner of .29 decimals of land of C.S. Plot No.60 of C.S. Khatian No. 470 and the said Goher Sheikh died leaving behind one son Modhu Sheikh and 2 daughters namely Rubia Bewa and Shirin Bewa but the land of the said plot was recorded wrongly in the name of Modhu Sheikh alone although the 2(two) daughters of Goher Sheikh have been enjoying and possessing their portion in the said plot. Mohdu Sheikh became the owner of 14.12 decimals of land and Rubia and Shirin Bewa together became the owner of 14 decimals of land left by their father late Goher Sheik and Modhu Sheikh died leaving behind 3 (three) sons namely Jowahar Ali, Basiruddin and Ahmed Ali and 2 (two) daughters namely Amirun and Dudhjan and accordingly the 3(three) sons of Modhu Sheikh became the owner of .033/8 decimals of land each and two daughters became the owner of .0113/16 decimals of land each; that the said Jawahar Ali, Basiruddin and Ahmmed Ali sold their portions of the suit plot to Jamal Uddin Khan by registered kabala dated 31-01-1959. Shirin Bewa died leaving behind a son named Shahed Ali and three daughters; that Shaheb Ali sold 1.12 decimals of land to Jamal Uddin by a registered deed dated 05-02-1969 and thereby Jamal Uddin became the owner of .03 decimals of land and he sold the same to defendant No.2 Mokshed Ali by a registered kabala dated 06-07-1972. The Dudhjan sold .01 decimals of land to Rahij Uddin by a registered kabala dated 20-05-1984 and after purchase he constructed pucca shop over the suit land who transferred the same to defendant No. 1, Shamsul Haq by a Heba-bil-Ewaz deed dated 11-07-1985. In this way, defendant No.1 and 2 have been in possession of the specified area in the southern part of the suit land.