MD. SHAHANUR RAHAMAN Vs. ALHAJ ABBAS ALI MONDAL

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 29.3.2005 passed by a Single Bench of the High Court Division in Civil Revision No.4644 of 2003 discharging the rule affirming the judgment and decree dated 1.10.2003 passed by the learned Senior Assistant Judge, 1st Court, Bogra in Small Cause Court Suit No. 1 of 1998 decreeing the suit.

(2.) Short fact of the case is that one Abbas Ali Mondal, the predecessor in-interest of the respondent Nos. 1-7 as plaintiffs instituted Small Cause Court Suit No.1 of 1998 before the Senior Assistant Judge, First Court, Bogra impleading the petitioners and respondent Nos. 4-7 as defendants praying for a decree for recovery of khas possession upon evicting the defendants therefrom. The plaintiff asserted that the defendants lastly paid rent for the month of July and August, 1997 on 2.9.1997 and since then they did not pay any rent and became a habitual defaulter and undesirable tenant. The plaintiff also alleged that his eldest son, Md. Abdul Latif Mondal (since deceased), required the suit premises for starting his own business therein. The plaintiff issued a notice under section 106 of the Transfer of property Act on 14.1.1998 through his Advocate terminating the tenancy with the expiry of the month of February, 1998 but the defendants did not vacate the suit premises. Hence the suit was instituted.

(3.) The defendant Nos.1-5 contested the suit by filing a written statement contending amongst others that the original landlord Abbas Ali Mondal entered into an agreement for 5 years on payment of advance rent of Tk. 45,000/- for his treatment upon enhancing monthly rent at Tk. 750/- per month and such agreement was entered into on 2.9.1997. The contesting defendants also alleged that the defendant Nos.1-5 reconstructed the suit premises in 1989 at a costs of Tk.1,50,000/-. The contesting defendants also contended that the original plaintiff having received the advance amount of Tk.45, 000/- was liable to adjust the same against the monthly rents and the defendants were therefore not a defaulter in respect of the suit premises. The contesting defendants further alleged that they purchased 4 decimals of land from the cosharer of the jote, Tafiran Bibi, and became owner in possession, of the suit premises and filed partition Suit No.116 of 1999 in the 1st Court of the Subordinate Judge, Bogra against the heirs of the original landlord Haji Abbas Ali Mondal and the plaintiff having learnt about the said suit instituted this false suit which is liable to be dismissed with costs.