MISBAH ABEDIN Vs. MUZMMIL ALI

JUDGEMENT

(1.) This petition for Leave to Appeal is directed against the judgment and order dated 04.01.2006 passed by the High Court Division in Civil Revision No.5249 of 2002 discharging the Rule affirming the judgment and decree dated 02.09.2002 of the learned Additional District Judge, 3rd Court, Sylhet in Title Appeal No.10 of 2000 affirming those dated 18.11.1999 of the learned Subordinate Judge, 3rd Court, Sylhet in Title Suit No. 195 of 1994.

(2.) The case of the plaintiff is that the owner of the disputed plot Nos. 1642 and 1643 along with one Haji Abdur Raquib and they became the owner of the plot of Dag No. 1642 by way of jote settlement and of plot in Dag No.1643 by way of possessing the said land jointly in equal shares and subsequently Haji Abdur Raquib transferred his 8 annas share to the plaintiff in lieu of appropriate consideration money on 15.12.1960 and as there existed friendly relationship between the plaintiff and Haji Abdur Raquib, no kabala was executed or registered but subsequently in order to avoid any future complication, Haji Abdur Raquib by a registered deed dated 09.06.1989 admitted the sale of the said property in the year 1960 to the plaintiff and the plaintiff thus became the owner and possessor of disputed Dag Nos. 1642 and 1643 alongwith other land and by constructing houses thereon he started living thereon where there is a pond and a vegetable garden also. The plaintiff and Haji Abdur Raquib were earlier possessing some portion of land under Indra Bhusan Deb and others by way of jote settlement and when the property was wrongly recorded in the name of the earlier joteder, the plaintiff and Haji Abdur Raquib on 06.01.1961 filed objection case No.190 which was allowed on 09.02.1961 in presence of both the parties and the names of the joteders were deleted and the order was passed for recording the names of the plaintiff and Haji Abdur Raquib in 1.35 decimals of land in Dag Nos.1646 and 1647 which was subsequently transferred on 18.07.1961 by the plaintiff and Haji Abdur Raquib by way of kabala in favour of the predecessor of the contesting defendant, Haji Siddique Ali, and the said Siddique Ali after the purchase was in possession in the land and on his death, his heirs were enjoying the suit land.

(3.) Defendant Nos. 6 and 7 before the institution of the suit spread the rumors that some land of the disputed Dag Nos.1642 and 1643 were gifted away to them by Abdus Satter, a son of Haji Siddique Ali and after knowing this, the plaintiff collected the certified copy of the said gift deed on 26.05.1988 and came to know that Abdus Satte, son of Haji Siddique Ali, claiming himself as the only heir of his wife Efatunnessa Khanam, claimed to be the owner of 0.10 decimals of land on the west-southern side of the disputed Dag No.1642 and 0.10 decimals of land on the western side of Dag No.1643 claiming that his wife Efatunnessa Khanam purchased on 29.01.1962 from her father-in-law, Siddique Ali, and then she gifted away the said property to defendant Nos.6 and 7. The plaintiff also came to know after obtaining the certified copy of the kabalas that Siddique Ali narrated in the kabala that he purchased the land from Haji Abdur Raquib and the plaintiff and thereafter, transferred the same to his daughter-in-law but in fact the plaintiff and Haji Abdur Raquib Ali never sold the plot of the disputed dag numbers to Siddique Ali and hence Efatunnessa never got any title by way of purchase from Siddique Ali by the 6 kabala deed on 29.01.1962 and defendant Nos.6 and 7 did not get any title by virtue of the deed of gift from Efatunnessa and in fact the plaintiff and Haji Abdur Raquib sold 0.85 decimals of Dag No.1646 and 0.50 decimals of Dag No.1647 in total 1.35 decimal of land to Haji Siddque Ali and they never sold any land of disputed Dag No. 1642 and 1643 but since the responsibility of writing the kabala was given to Haji Siddique Ali, he with ulterior motive changed the dag numbers from Dag Nos.1646 and 1647 to Dag Nos.1642 and 1643 and although Haji Siddique Ali changed the dag numbers in the kabala, he did not earn any title and possession by way of purchase on the disputed land and the plaintiff is in possession for a long time and is enjoying the suit land on which the defendants or their predecessors never had any title or possession and when the defendants created some kabalas in favour of defendant Nos.6 and 7 relating to some portion of the disputed land, the title of the plaintiff was clouded and furthermore, when the defendant threatened the plaintiff of dispossession from the suit land, the plaintiff was constrained to file the suit for declaration of title and for permanent injunction.