HAJEE ABDUS SATTAR Vs. MAHIUDDIN

JUDGEMENT

(1.) In this appeal by special leave the question for determination is whether the learned Single Judge of the High Court Division rightly interfered with the appellate Court's judgment holding that the respondents are tenants of the plaintiff-appellant and shat they are estopped from questioning the appellant's title in the suit-premises. The order impugned of the High Court Division is dated 18 January 1984 in Civil Revision No, 184 of 1983 arising out of Title Appeal No. 87 of 1977 of the Additional Court of Subordinate Judge, Noakhali.

(2.) The suit Hand is a Chandina-bhiti with a construction thereon in Maijdee town. One Gagan Ali was admittedly its owner in possession. In fact he had only the possessor right therein. Case of the plaintiff-appellant is that Gagan Ali sold the premises to him by a registered sale-deed dated 8 December 1953 (Ext.l) and delivered possession to him. Thereafter he possessed it by inducting different tenants, one Hasmatullah (P.W. 4) being one such tenant. After the tenancy of Hasmatullah was terminated the appellant inducted into the premises as tenant one Kala Miah by a registered Agreement dated 31 August 1964 corresponding to 15 Bhadra 1371 B.S. (Ext 3). Kala Miah continued his tenancy on payment of rent till his death and on his death his sons and other heirs, who are the main defendants in this suit, held over possession as tenants but they defaulted in payment of rent. The appellant therefore filed the suit namely O.C. Suit No 886 of 1973, in the First Court of Munsif, Noakhali, for realisation of arrears of rent from January 1972 to October 1973 at the rate of Rs. 45/- per month and also for eviction of the defendants tenants on whom notice of eviction was already served under section 106 of the Transfer of Property Act.

(3.) Defendant No.1, (respondent No. 1) son of Kala Miah, contested the suit denying the appellant's title altogether and setting up a rival claim of title himself on the basis of purchase from one Mohammadullah. He contended that the original owner, Gagan Ali, did not sell the premises to the appellant under any kabala, like Ext.1. but Gagan Ali made oral transfer of his interests including possession of the suit-land to Mohammadullah and that it is Mohammadullah who, by an unregistered Agreement dated 2-6-64 (Ext. Ka) sold the premises to him on receipt of consideration of Tk. 600/-and since then he has been possessing it as of his own right. He denied that his father Kala Miah was a tenant under the appellant or that he got the premises by inheritance from his father and, as such, no question of his holding over as a tenant of the appellant arose