FAIZ AHMED CHOWDHURY Vs. ALHAJ SHAMSUL HUDA CHOWDHURY

JUDGEMENT

(1.) Faiz Ahmed Chowdhury, plaintiff-petitioner seeks Leave to Appeal against the impugned judgment and order dated 15.05.2005 passed by Single Bench of the High Court Division in Civil Revision No.3696 of 1004 reversing those of dated 02.08.2004 passed by the Additional District Judge, Deulia Bishayak Adalat, Chittagong in Civil Revision No.135 of 2004 disallowing the revisional case and affirming the judgment and order dated 28.03.2004 passed by the Court of first Additional Assistant Judge, Chittagong in partition Suit No.58 of 1991 rejecting the application of the petitioners under Section 151 of the Code of Civil Procedure for according permission to make house/construction the suit land possessed by them.

(2.) The petitioner as plaintiff filed Partition Suit No.67 of 1987 in the Court of 1st Sub-judge, Chittagong for partition of the suit land stating, inter alia, that the' suit land as described in the schedule to the plaint belonged to Ochi Miah Chowdhury in whose name R.S. Khatian was prepared correctly and during his life time he gifted 264 chhataks of land to his 4 sons by 2nd wife namely Shamsul Hilda, defendant No. 1, Mohammad Shofi, Farid Ahmed and Mahabubul Hoque by a registered gift deed dated 16.06.1965 being No. 3001; that while possessing the same Mahabubul Hoque died and thereafter his share was developed to other brothers and sisters and after the death of Md. Shafi, defendant Nos.2-5 became owner of his left property and after death of Farid Ahmed defendant No. 6-8 became owner of his left property; that while possessing the same defendant Nos.6-8 transferred 0.50 chhataks of land (2 gandas) to the plaintiff by a exchange deed being No.542 dated 06.07.1987 and accordingly he has been possessing the same as ejmali property with the defendants; that he has mutated his name for the said land vide Mutation Case No. 197 of 1987-88 and has been running his business therein on payment of rents and by holding trade licence from the Paurashava; that Ochi Miah was owner of the rest 0.14 decimals of land during his life time and after his death defendant Nos. 1-25 became owner of that land as his heirs; that during his life time Ochi Miah also let out the house situated thereon to the defendant Nos. 26-29 and accordingly they are in possession as tenants under the said heirs of Ochi Miah; that the plaintiff is owner of 2 gandas of land and he has been in possession of that quantum of land out of 0.278 chhataks as described in the schedule to the plaint.

(3.) The defendant Nos. 1-5 and 6-8 filed two separate written statement against the said prayer for injunction denying the material contents and allegations of the plaintiff made in the petition for temporary injunction alleging, inter alia, that except 2 gandas land as claimed by the plaintiff the defendants have been in possession of rest part of the suit land as described in the schedule to the plaint and since they are in specific possession as heirs of the original owner Ochi Miah and the Court below was pleased to pass an order directing the parties to maintain status quo of the suit property; that it may be stated that the defendant Nos. 1-8 did not file any appeal against the order of status quo.