SHAHABUDDIN Vs. MAHTAB UDDIN

JUDGEMENT

(1.) This petition for leave to appeal is directed against the Judgment and order dated 05.03.2005 passed by a Single Bench of the High Court Division in Civil Revision No.3195 of 1998 making the Rule absolute.

(2.) Short facts are that the plaintiffs instituted Title Suit No. 269 of 1966 in the Court of Munsif(now Assistant Judge), Borolekha, Moulvibazar impleading one Abdul Huque the predecessor in interest of the present petitioners as defendants and opposite party Nos.3-27 and others raying for a decree for declaration of title and recovery of khas possession in the suit land as described in the schedule to the plaint stating, inter alia, that two full mothers, namely, Firoz Ali and Hasan Ali were owners of the suit land. Hasan Ali transferred his share in favour of his brother Firoz Ali by a registered kabala dated 8th Sraban, 1330 B.S. and shifted to his father-in-law's house at Shafarpur and died there leaving behind two sons as heirs through his two wives. The defendant No.1 who is son of Hasan Ali through his first wife, finding himself in difficulty in living with his step brothers and sisters obtained permission from Firoj Ali to live with him as a licensee and accordingly defendant No.1 by erecting a hut has been residing in Plot No.2 of the suit land as a licensee. The further case of the plaintiff is that the defendant No.1 used to look after all the affairs of Firoj Ali and taking advantage there of the defendant No.1 got his name recorded in the Khatian and subsequently when the plaintiffs who are sons of Firoj Ali directed the defendant No.1 to vacate the suit land, the latter refused and hence is the suit.

(3.) The defendants contested the suit by filing written statement denying the material allegations made in the plaint. Their case is that the defendant No.1 was never a licensee in the suit land under Firoj Ali but he had been possessing the suit land for long over 35 years and acquired title by adverse possession. Their further case is that the suit land originally belonged to two brothers, namely, Hamid Ali and Maidar Ali and by amicable partition Hamid Ali was residing on the southern half portion and Hamid Ali died leaving behind three sons in Joyed Ali, Khorshed Ali and Wasid Ali. Hasan Ali transferred his share in favour of the Firoj Ali in 1330 B.S. Firoj Ali subsequently purchased the share of Joyed Ali and he is residing on his purchased property for over 40 years. The further case is that due to good relationship no formal kabala was executed by Joyed Ali and others in favour of Hasan Ali and record of right was correctly prepared. So the suit is liable to fail.