ALA MEAH Vs. ALI AHMED

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 17.2.67 passed by the learned Subordinate Judge, 2nd Court, Chittagong in other Appeal No. 175 of 1966 reversing those dated 31.3.66 passed by the learned Munsif, North Raozan in Other Suit No. 150 of 1962.

(2.) The suit was one for declaration that the kabala dated 12th August, 1948 standing in favour of defendant No. 1 was a benami document and also for permanent injunction restraining the defendants from entering into the suit property, damaging the huts and dispossessing the plaintiffs there from. It was bought by one Ala Miah and Amina Khatun, predecessors of the present appellants. Their case, inter alia, is that they are the owners of the property described in the schedule to the plaint which consists of their homestead and a tank measuring 32.25 acre of land. On 12th August, 1948 in order to avoid creditors they executed kabala purporting to transfer the property in favour of defendent No, 1 who was friendly to plaintiff No. 1. There was no payment of any consideration thereunder and they continued to possess the property as before. The custody of the kabala also remained with them. Defendant No. 2 who is father-in-law of defendant No. 1 removed the original kabala from the plaintiffs' custody and subsequently took various kabalas from defendant No. 1. The defendants had never any possession nor did they ever assert any act of possession upon the disputed homestead and tank and the plaintiffs have been in possession thereof for over the statutory period of limitation in their own right, but on or about 20th November, 1962 the defendants having no right, title or possession therein threatened the plaintiffs to dispossess them from the suit property.

(3.) Defendant Nos. 1 and 2 contested the suit by filing separate written statements denying the claim of the plaintiffs. In his written statement defendant No. 1 asserted that the Impugned Kabala was an out and out sale deed and lie paid consideration money for the same and also got possession. It was further asserted that he sold out the property to defendant No. 2 who is now in possession thereof. Defendant No.2 supported the case of defendant No. 1 and claimed himself to be a bona fide purchaser for value without any notice of the alleged benami transaction.