SAYED AHMED MAJUMDER Vs. SAMSUL HOQUE

JUDGEMENT

(1.) This petition for leave to appeal arises out of the judgment dated 28.3.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 3645 of 2002 discharging the Rule obtained against the judgment and decree dated 28.5.2002 passed by the learned Additional District Judge,4th Court Comilla in Title Appeal No.130 of 1998 allowing the appeal and thereby reversing those of dated 6.04.98 passed by the learned Senior Assistant Judge, Chowddagram, Comilla in Partition Suit No.135 of 1995 decreeing the suit.

(2.) The respondent Nos.1-4 instituted the above partition suit on the averments that the suit land originally belonged to Fosi Gazi and after his death his two sons Hamid Ali and Tukku Mia became owners of the same each getting 8 annas share; Hamid Ali died leaving behind one son Nanna Mia and one daughter Wazedun Nessa, Nanna Mia died leaving behind one son Syed Ahmed, the defendant No.1, and one daughter, the defendant No.2; Wazedun Nessa died leaving behind two sons defendant No.3 and 4 and one daughter the defendant No.5: Tukku Mia while owning and possessing remaining 8 annas died leaving behind one son Shamsul Huq, the plaintiff No.1, and one daughter, the plaintiff No.2; the plaintiff Nos.3 and 4 are the sons of plaintiff No.1; the defendant No.3 got .30 decimals of land out of Plot No.489 from the defendant No.1 by sale deed dated 23.1.81 and the defendant No.4 also got 30 decimals of land out of the above plot No. 489 from the defendant No. 1 by sale deed dated 23.1.81; S.A Khatian was prepared in the names of Nanna Mia and the plaintiff No. 1; the plaintiffs got right title and possession in 1.69 acre of land; the suit land is possessed by the plaintiffs as well as the defendants in ejmali and since the defendants did not give due shares to the plaintiffs amicably inspite of request they were constrained to file the instant suit.

(3.) The defendant No.1 contested the suit by filling written statement stating, inter alia, that the suit land originally belonged to Fosi Gazi and after his death his only son Hamid Ali became the owner of the suit land; the landlord filed Rent Suit No. 6769 of 1933 for realization of arrear rent and after obtaining decree the landlord filed Rent Execution Case No.124/1936 and Hamid Ali, the judgment debtor, paid the decretal dues with cost; Tukku Mia was not son of Fosi Gazi; the plaintiff Nos.1 and 2 never possessed the suit land; the S. A. record was wrongly prepared in the name of plaintiff No.1 along with the defendant No.1; while owning and possessing the suit land the defendant No.1 sold 20 decimals of land to the defendant Nos.6 and 7 and also sold 60 decimals in favour of defendant Nos.3 and 4 and the defendant Nos. 1-5 are in possession of the remaining 89 decimals of land and as such the suit is liable to be dismissed in limini. The trial court decreed the suit in part. On appeal by the plaintiffs the learned Additional District Judge, 4th Court, Comilla, after hearing, allowed the appeal. The defendant No.1 then moved the High Court Division and obtained Rule in Civil Revision No. 3645 of 2002 and the High Court Division, after hearing, discharged the Rule.