SHAHIN REZA Vs. ABDUL HAMID

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 26.07.2005 passed by a Single Bench of the High Court Division in Civil Revision No.4786 of 1999 discharging the Rule.

(2.) Short facts are that the petitioner as plaintiff instituted Title Suit No. 22 of 1998 in the 4th Court of Assistant Judge, Dhaka praying for declaration of title by adverse possession to the suit land and for further declaration that the exparte judgment and decree dated 09.08.1990 passed in Title Suit No. 167 of 1990 was illegal, inoperative and not binding upon the plaintiff contending, inter alia, that the suit land was allotted to one Musleem Miah, a refugee on 04.06.1963. The said Musleem Miah paid the entire money as per terms of allotment and lived in the suit land with other members of his family. The said Musleem Miah borrowed Tk. 3000/- from the father of the plaintiff and allowed him to stay in the land as a permissive possessor. After the war of liberation, Musleem Miah decided to migrate to Pakistan forever and handed over all the title papers in respect of the suit land in favour of the plaintiffs father. On 30.10.1973 Musleem Miah executed a transfer deed in favour of the plaintiffs father and that transfer deed was signed by Sirajul Islam, the full brother of Musleem Miah. Since the plaintiffs father was in possession till his death, a good title by way of adverse possession was created in his favour in the suit land. The further case of the plaintiff is that the defendants were inducted into possession in a room in 1982 under the plaintiffs father as a monthly tenant. The plaintiffs father died in 1993. The defendant stopped paying rent from the last part of 1988 and disclosed about a bainanama from Musleem Miah in respect of the suit property and also claimed the ownership of the suit homestead. The further case of the plaintiff is that the defendant No. 1 managed to get a survey report on 31.03.1983 showing his possession in the suit homestead. Musleem Miah went to Pakistan in 1973 and died there. The plaintiff got a letter from the defendant No.2 on 26.04.1994 and came to know about the exparte decree in question. Thereafter, he further came to know about the kabala dated 25.07.1991. Hence is the suit.

(3.) The defendant No.1 contested the suit by filing a written statement contending, inter alia, that the suit property was allotted to Musleem Miah. While in possession the said Musleem Miah entered into a contract on 11.01.1972 for transfer of the suit property in favour of the defendant No.1. The consideration was fixed at Tk. 12,000/- out of which the defendant No.1 paid Tk.11,500/- as earnest money and on 11.01.1972 Musleem Miah executed a bainanama in favour of the defendant No.1. Musleem Miah banded over possession in favour of the defendant No.1 on that date and the latter began to possess the same. Since Musleem Miah delayed to execute and register the kabala, the defendant filed Title Suit No.35 of 1986 for Specific Performance of Contract.