MARUF HOSSAIN (SWOPON) Vs. DILJAN BIBI

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 2.3.2005 of the High Court Division passed in Civil Revision No. 4260 of 2002 discharging the Rule.

(2.) The respondents, as plaintiffs, instituted Title Suit No. 24 of 2001 in the 2nd Court of Joint District Judge, Dhaka for recovery of khas possession of the suit land under section 9 of the Specific Relief Act on the averments that the suit land originally belonged to 3 brothers namely Niamat Sheikh, Keramat Sheikh and Fazar Ali and ultimately they became the owners in possession of the same and they paid rents, taxes and other charges and they constructing a semi pucca tin shed building therein rented it to different bharatias and in the Mohanagar Settlement their names were rightly recorded and the objection filed by the defendant against the above recording was also ultimately rejected; on 4.9.2000 the defendant with some local people illegally entered into the suit land and forcibly dispossessed them from the suit land. The defendant contested the suit by filing a written statement stating inter alia that the suit land belonged to Niamat Sk. Keramat Sk. and Fazar Ali and he by virtue of agreement of sale (Baina) possessed the suit land since 1999 and mutated his name and he paid rents, taxes and other charge and the plaintiffs have no right title and possession in the suit land and the plaintiffs instituted the suit with ulterior motive. The trial court, after hearing, decreed the suit with a direction to handover the possession of the suit land to the plaintiffs within 40 (forty) days from the date of judgment failing which the plaintiffs will be at liberty to get possession through Court. Being aggrieved the defendant moved the High Court Division and obtained a Rule in Civil Revision No. 4260 of 2002 and the High Court Division, after hearing, discharged the Rule.

(3.) The learned counsel for the defendant petitioner submitted that the High Court Division fell in error in not considering that the trial court decreed the suit without considering that the defendant possessed the suit land by virtue of deed of agreement for sale and after execution of the sale deed he mutated his name and paid rents, taxes and other charges and the plaintiffs have no right, title, interest and possession in the suit land and the trial court, without applying its judicial mind, wrongly held that the plaintiffs had exclusive possession over the suit land and the defendant illegally dispossessed the plaintiffs from the suit land. The learned counsel further submits that the D.Ws. 1 and 2 proved case as regards possession of the defendant in the suit land and further his share is separate which has got no connection with the land of the plaintiffs and moreover .dispossession has not been proved.