WALIULLAH MUNSHI Vs. LODU MIA PATWARY

JUDGEMENT

(1.) This appeal arises from Civil Revision No. 140 of 1983 decided by a judgment of a Bench of the High Court Division, Comilla (Mr. Justice A.T.M. Afzal and Justice Nurul Huque Bhuiyan on 30th October 1984).

(2.) Respondent No 1 instituted Title Suit No. 181 of 1979 in the court of Subordinate Judge, Noakhali for declaration that the suit land was not vested and non-resident property. Allegations were that the suit land was purchased in auction in Money Execution Case No. 47 of 1961 by several persons, namely, Subhas Chandra Pal having 8 annas share. Jaheda Khatun having 4 annas share and Shamsul Huq Miaji having 4 annas share each. By an amicable partition they were in possession of the suit land. Plaintiff-respondent purchased Jaheda Khatun's share from her heirs and also purchased the share of Subash Chandra Pal on 2nd December 1978. Since his purchase plaintiff-respondent had been possessing the same. Defendant No. 1 in collusion with defendant No. 2 managed to get the suit land on lease as vested and non-resident property. This having cast cloud upon his title, plaintiff instituted the suit for declaration. According to defendant No. 1 who is the appellant, plaintiff's claim that he purchased the suit land was false and his kabalas are forged; Further, plaintiff's vendor was never a citizen of this country and therefore, no question of auction purchase of the suit land by him could arise. Also, plaintiff was never in possession of the suit land. Appellant got the suit land by way of lease as it was vested and non-resident property. On 7th February 1981 when the suit was fixed for peremptory for striking out the name of the appellant from the plaint alleging that though it transpired at the time of filing the suit that he was a leasee, in fact, defendant No. 1 being not a leasee of the suit land he was an unnecessary party. Plaintiff's prayer was rejected by the learned Subordinate Judge against which plaintiff preferred Civil Revision No. 28 of 1981 under section 115(2) of the Code of Civil Procedure before District Judge, Noakhali who allowed the revision case and struck out the name of defendant No. 1 from the plaint. Defendant No. 1 then filed Civil Revision No. 140 of 1983 under section 115(3), C.P.C. before the High Court Division. The learned Judges of the High Court Division who heard the aforesaid revision affirmed the judgment of District Judge, Noakhali.

(3.) Being aggrieved, defendant No. 1 moved this Court and obtained special leave to appeal on the following terms: