BASIRUDDIN Vs. MD. MOSLEM UDDIN

JUDGEMENT

(1.) The petitioner, Basiruddin, seeks Leave to Appeal against the judgment and order dated 23.03.2005 passed by the High Court Division in Civil Revision No. 1151 of 1998 discharging the Rule thereby affirming the judgment and decree dated 15.02.1997 passed by the learned Additional District Judge, Rangpur in Title Appeal No. 141 of 1986 reversing those dated 29.05.1986 of the Munsif, 2nd Court, Sadar, Rangpur, in Other Suit No. 354 of 1981.

(2.) The respondent No.1 as plaintiff instituted Other Suit No. 354 of 1981 in the Court of the then 2nd Munsif, Sadar, Rangpur inpleading the present petitioner and respondent Nos. 2-5 as defendants praying for a decree for permanent injunction restraining the defendants from entering into the suit land. On transfer to the Court of the Sadar Munsif the suit was renumbered as C.G. Suit No. 311 of 1984. The plaintiff alleged that suit plot No. 350 and 379 originally belonged to Bachcha Mia and his son Basiruddin and subsequently Bachcha Mia sold an area of 0.48 acres of land from plot No.350 to one Nur Mohammad Khan on 04.07.1968 and put him in possession and Basiruddin sold 0.40 acres of land of plot No.379 to the said Nur Mohammad Khan on 09.07.1968 by a registered kabala and delivered possession to Nur Mohammad Khan. The suit plot No.334 as described in Schedule-'Kha to the plaint originally belonged to Kafiluddin the defendant No. 3 who sold 0.24 acres of land of plot No. 344 to the aforesaid Nur Mohammad Khan on 27.07.1968 and put him in possession. The suit plot No. 97 as described in Schedule-'Ka' to the plaint belonged to one Afanuddin who sold 0.36 acres out of plot No.97 to the said Nur Mohammad Khan and put him possession. Thus, Nur Mohammad Khan became the owner of the suit land and subsequently died leaving behind 7 daughters namely Rahima Khatun, Ayesha Khatun, Joytunnessa, Khairunnessa, Johora Khatun, Amena Khatun, Hoseneara Begum and one son, Abul Hossain and one wife Rahatannessa who inherited the suit land. The aforesaid legal heirs of Nur Mohammad Khan sold the suit land to the plaintiff on 14.02.1978 at a consideration of TK. 10,000.00 and since purchase the plaintiff has been possessing the suit land. The defendants have no right, title or possession in the suit land but they threatened the plaintiff with dispossession.

(3.) The defendant Nos.1 and 2 contested that suit by filing a written statement contending that the allegation of transfer of an area of 0.48 acres of land of Plot No. 350 by Bachcha Mia, the late father of defendant Nos. 1 and 2 to Nur Mohammad Khan on 04.07.1968 is not correct and in fact it was an agreement for sale. Bachcha Mia transferred an area of 0.48 acres of land of Plot No.350 at a consideration of TK.400.00 by a registered deed of agreement dated 04.07.1968 with a condition to recovery within 7 years and if the entire consideration money is repaid and Bachcha Mia refunded the said amount of money to the said Nur Mohammad Khan on 27.11.1971 in presence of defendant No.1 in front of his grocery shop and took over possession of the land from him and thereafter Bachcha Mia sold the said land to one Abbas on 29.09.1973 for a consideration of TK. 3,000.00 and delivered possession to him. Bachcha Mia requested Nur Mohammad Khan to execute a deed of reconveyance in his favour but without any result. The defendant No.1 transferred 0.40 acres of land of Plot No.379 at a consideration of TK. 300.00 by a registered deed of agreement on condition of re-transfer by deed dated 09.07.1968 and that on 27.11.1971 the defendant No.1 refunded the consideration money to the said Nur Mohammad Khan in front of his grocery shop in presence of defendant No.2 and took over possession of the land in question. The defendant No.1 requested Nur Mohammad Khan to execute a deed for re-conveyance in his favour but without any result. Thereafter, the defendant No.1 sold 036 acres of land of plot No.379 to one Most. Mursheda Begum wife of Abbas Ali on 21.04.1972 for a consideration of TK. 1,000.00 and delivered possession of the same to the purchaser. Nur Mohammad Khan never acquired any title to the suit land but 0.40 decimals of land of Plot No.379 has been in possession of the defendant No.1 which is his homestead. The defendants never threatened the plaintiff with dispossession and the suit liable to be dismissed.