MUSTARI BIBI Vs. MD. YUSUF

JUDGEMENT

(1.) Mustari Bibi and three other defendant- petitioners seek leave to appeal against the judgment and decree dated 6-3-2005 passed by a Single Bench of the High Court Division in CR No. 908 of 2001.

(2.) The facts, in short, are that Md. Yusuf, predecessor of the plaintiff-respondents, instituted Title Suit No. 69 of 1996 in the Court of Senior Assistant Judge, 3rd Court, Dhaka for declaration of title, recovery of khas possession and demarcation of the suit property stating, inter alia, that one Tusi Bewa along with other persons were owners of 1320 ajutangsha of property and that on the basis of amicable settlement amongst the CS tenants Tusi Bewa got 200 ajutangsha i.e. the suit property, and that she died leaving behind two daughters namely, Samiran Bibi and Akubi Bibi and that Samiran Bibi died leaving behind one son named Abdul Hamid and four daughters namely, Buri Bibi, Marium Bibi, Isami Bibi and Jaynab Bibi and that then Buri Bibi died leaving behind her husband, one daughter named Sahara Bibi, one brother and three sisters as legal heirs and that another daughter of Tusi namely, Akubi Bibi, died leaving behind one son Nuruddin Mia and one daughter Ozan alias Ozufa Bibi as her legal successors and that aforesaid Nuruddin Mia died leaving behind his sister. It was further stated that Ozan Bibi gifted her property to her daughter Mustari Bibi under a heba-bil-ewaj and Mustari Bibi in her turn sold out the property to Must. Shahani Bibi, the mother of the plaintiff-respondents under a registered deed of sale and that Abdul Hamid transferred his property to Shahani Bibi under a deed of exchange. It was further stated that Marium Bibi, Isani Bibi and Jaynab Bibi sold out their property to Shahani Bibi and thus Shahani Bibi became owner and possessor of the suit property and that she died leaving behind the plaintiff and that, all on a sudden, the defendants i.e. the petitioners, started construction in the khas land of the Government and also they tried to encroach upon the vacant space of the plaintiff's property and though the attempt failed but the attempt of the defendants to make the construction over the Government land created cloud over the right, title and interest of the plaintiff over the suit property and hence was the suit. It was further stated that during pendency of the suit the defendant-petitioners forcibly occupied the property mentioned in schedule-C of the plaint.

(3.) The present petitioners contested the suit filing written statement denying material allegation made in the plaint and stated, inter alia, that the suit property is in ejmali possession and that no amicable settlement was held between the parties as alleged in the plaint and that Tusi Bewa did never get 200 decimals as alleged who was, in fact, owner of 165 decimals and that she as well as her daughters were never in physical possession of the suit property and that there was no vacant space in the suit land nor the defendants ever tried to dispossess the plaintiffs. It was further averred that the SA plots mentioned in the plaint were recorded in the SA Khatian No. 4093 in the name of Asia Khatun along with other persons and Asia Khatun, adopted daughter of Didu Ostagar, was predecessor-in-interest of the defendant-petitioners and the construction taken up by the defendants was legally done within the area of the inherited land from the predecessor of the defendants and the defendants having title and possession, municipal holding also stood in their name and the plaintiff's case being false the suit was liable to be dismissed.