ABUL KASHEM Vs. MD. ABU BAKAR SIDDIQUE KHAN

JUDGEMENT

(1.) The defendant is seeking leave to appeal against the judgment and order dated 25th March, 2003 passed by a Single Bench of the High Court Division in Civil Revision No. 5731 of 2001 discharging the Rule.

(2.) The facts, leading to this petition, are that the plaintiff-respondents filed Other Suit No. 161 of 2000, alleging, inter alia, that the owners of the property described in C.S. Dage No. 248 under Khatian No. 324 were Lalkha, Isha Kha, Ali Kha, Zion Kha, Mia Kha and Guda Kha; that the schedule property devolved upon Isha Kha, which is stated in Khatian No. 324 that Isha Kha transferred 52 decimals of land from northern side on 03-11-1915 during C.S. operation to Sheikh Falu and Tilumuddin that Sheikh Falu died leaving his share of 25 decimals of land for his daughters namely Bashiron, Apon and brother Tilumuddin.Thereafter, Apon died leaving her husband Tomizuddin and sister Bashiron; that Tomizuddin and Boshiran then sold their shares (13+4 1/3) to defendant No.3; Tilumuddin sold his share (25+8 1/2 ) to his son defendant No.1 Abul Kashem and the deeds are in possession of defendant No.3; that Isha Kha possessed 45 decimals of land and he died leaving behind wife and son namely Santon and Chand Kha and S.A. Khatian No. 396 was prepared in the name of Chand Kha but wrongly S.A. record was not prepared in the name of Tilumuddin, Samiron, Alimuddin and Sonaban that Chand Kha possessed all the land; that Abul Hashem and Abul Kashem transferred 52 decimals of land from the northern side to Chand Kha on 16-01-1969; that Chand Kha transferred suit land on 19-09-1984 to plaintiff Nos. 1-5 but wrongly 65 decimals of land was prepared in the name of defendant No. 3 in R.S. record, that 65 decimals of land was transferred by the defendant Nos.1 and 3; that Sonaban after the death of Is a Kha married Hazi Rowshan Ali and she gave birth to a daughter named Somortoban and Sonaban died leaving behind one son, one daughter and husband namely Chand Kha, Somortoban and Rawshan Ali respectively; that under Khatian No. 293 of the S.A. record, 32 decimals of land was recorded in the name of Chand Kha instead of 45 decimals of land; that plaintiff Nos. 1-5 purchased the share of Rawshan Ali from his heirs on 03-05-1992 and 27-07-1992 vide two registered deeds and rented the land to one Nurul Islam for an amount of Tk. 52,000/- yearly for five years; that on 10-11-1997, the defendants went to the house of the plaintiffs at about 7/8 hours and threatened to dispossess the plaintiffs from the suit land and they (plaintiffs) filed the suit. The plaintiffs further stated that they again rented the scheduled property to Modhumoty Super Bricks on 30-07-1999 but the said agreement is lying with the lessee and as a result, the plaintiffs could not file the agreement.

(3.) The defendant contested the suit by filing written statement, contending, inter-alia, that Sheikh Tilumuddin became owner of 39 decimals of land when Sheikh Kalu died leaving his two daughters namely Boshiron and Apon and brother Sheikh Tilumuddin; that Isha Kha verbally transferred 19.50 acres of land to Alimuddin and Khidir Kha after taking money; that Salam Patwary purchased 32.50 decimals of land from the heirs of Falu and from Azimuddin and Khidir Kha; that Salam Patwary thereafter transferred 32.50 decimals of land to Sahara Khatun and accordingly became owner of 71.50 decimals of land out of 97 decimals of land; that the plaintiffs have no right, title and interest over the suit land and they brought the suit upon false averments and as such the suit is liable to be dismissed.