MD. ZIARAT HOSSAIN Vs. MD. JAHER ALI

JUDGEMENT

(1.) This petition for leave to appeal arises out of judgment dated 4.1.2005 passed by a Single Bench of the High Court Division in Civil Revision 3313 of 1999 making absolute the Rule which was obtained against the judgment and decree dated 19.8.1999 passed by the learned Senior Assistant Judge, 1st Court, Gazipur in Title Suit No. 346 of 1998 decreeing in the suit.

(2.) The plaintiff/petitioner filed the above suit under section 9 of the Special Relief Act praying for restoration of the possession of the suit land on the averments that the suit land originally belonged to Abdul Molla, Sabdul Molla and Jabdul Molla and C.S. Khatian No.12 was prepared showing them as tenants of 1/3rd share each; Jabdul Molla died leaving behind only daughter Moymannessa and S. A. record and R.S. record were prepared in her name and she sold the suit land in favour of Abirjan by registered sale deed dated 31.7.74; Abirjan then sold the suit land to Alekjan, the mother of the plaintiff, on 13.3.1976 and thereafter Alekjan gifted the same in favour of the plaintiff; while the plaintiff was possessing the suit land by mutating his name the defendants, on 15.10.1998 at 9 A.M, forcibly took possession of the suit land and constructed 2 (two) tin chhapra and the defendants inspite of repeated requests refused to restore the vacant possession of the same to the plaintiff. The defendants contest the suit by filing written statement stating, inter alia, that the suit land originally belonged to Abdul Molla, Sabdul Molla and Jabdul Molla and while they were in possession of the same Jabdul Molla died leaving behind one brother Abdul Molla and one daughter Moymannessa; while in ejmali possession Moymannessa sold out 2.81 acres of land of plot Nos. 30, 31 and 32 along with some other lands in favour of Joynal Abedin by registered sale deed No. 10880 dated 1.11.75 and also made over possession of the same to him; Abdul Molla died leaving behind two sons Joynal Molla and Ketu Molla and 5 daughters Karimannessa, Rupjan, Jamiran and two others; Joynal Molla sold .16 acres of land from plot Nos. 31 and .33 acres from plot No. 32, in total .49 acres, infavour of the defendants; Joynal Molla sold .66 acre's of lands on 12.9.75 in favour of the defendants by 2 registered deeds and he also sold .33 acres of lands from plot No. 31 by registered sale deed No. 193 dated 11.11.75 favour of Abdul Mazid; Abdul Mazid then sold .26 acres of land in favour of the defendants by registered sale deed No. 4322 dated 30.5.93 and made over possession of the same to them; Karimannessa daughter of Abdul Molla sold out. 12 acres from plot No.31 and 121A acres from plot No. 32 infavour of the defendants by registered sale deed no. 11394 dated 23.9.89 and she again on 24.1.94 by registered sale deed No.774 sold out .04 acres from plot No.31 and .04 acres from plot No. 32 and made over possession of the same to Zaher uddin; then Abul Kashim son of Zamiron having died leaving behind six sons Abul Hossain, Annas Ali, Makbul Hossain, Ansar Ali, Ibrahim and Hazrat Ali and four daughters i.e. Sufia khatoon, Kohinoor Begun, Feroza Khatun and Fatema Khatoon who then sold .10 acres of land from plot Nos. 31 and 32 in favour of the defendants. The defendants, by purchasing land from plot No. 31 as above mutated their names and possessing the said lands by constructing homestead and shops therein and cultivating the rest of the properties. The learned Senior Assistant Judge, after hearing, decreed the suit. As against that the petitioner moved the High Court Division and obtained Rule in Civil Revision No.313 of 1993 and the High Court Division, after hearing, made the Rule absolute.

(3.) The learned counsel for the plaintiff petitioner submits that the plaintiff being in possession within the fixed boundaries and also led evidence, both oral and documentary, the trial court decreed the suit and the High Court Division acted illegally in deciding the possession of the suit land in favour of the defendants on misreading the evidence and the High Court Division also failed to consider that the suit land is a part of a bigger plot belonging to may co-shares and the claim of the defendants regarding their alleged title is dependant on proving many successive transfers in respect of the suit land and the High Court Division acted illegally in holding that the plaintiff failed to prove dispossession.