RANJU ROY Vs. JIBESH RANJAN ROY

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 24.1.2006 of the High Court Division passed in Civil Revision No. 3898 of 1997 discharging the Rule.

(2.) Facts, in brief, are that Mohen Bashi Roy, the predecessor of the petitioners, filed Title Suit No.36 of 1985 in the Court of the then Munsif (now Assistant Judge), Derai, Sunamganj for declaration of his right, title and interest in the suit land and for further declaration that the ex parte decree dated 27.5.1985 of the same very Court passed in Title Suit No. 30 of 1985 is illegal, void and not binding upon him on the averments that the suit land belonged to Raj Chandra who died leaving behind three sons namely Mukunda, Bipin and Manindra and after the death of Mukunda and Bipin the entire property devolved up Manindra; in the year 1972 Manindra who was ailing due to his old age brought the plaintiff to his own house and since then the plaintiff had been residing with Manindra; Manindra having died without any issue, the entire property devolved upon Arun Chandra Shil, the heir of Manindra; the plaintiff continued his possession in the suit homestead with the permission of Arun Chandra Shil who on 23.6.1985, at a consideration of Tk.15,000/-, along with other lands, also sold the suit land to the plaintiff by a registered kabala; the defendant No.1 in June 1985 for the first time, claimed the suit land on the basis of a managed ex parte judgment and decree dated 27.5.1985 passed in Title Suit No.30 of 1985 in which only the Government was impleaded as a party and further the averments made in the plaint of Title Suit No.30 of 1985 are not correct and that the alleged kabala dated 15.12.1936 as mentioned in the above plaint was an outcome of forgery and the said kabala was never acted upon.

(3.) The defendant No.1 contested the suit by filing written statement contending that Jadhunath was the original owner of the suit land and Raj Chandra, who was his under raiyat, took a loan of Tk. 172/- from Jadhunath and being unable to the pay that loan Raj Chandra, by kabala dated 15.12.1936, sold the suit land along with other land to Jadhunath and after the above transfer Raj Chandra, having no other land of his own for his living, started living in the suit land with his family members with the permission of Jadhunath and after the death of Raj Chandra, his three sons Mukunda, Bipin and Manindra, with the permission of Jadhunath, resided therein; Jadhunath having died leaving his son Jogesh Chandra the father of the defendant No.1 and then Mukunda, Bipin and Manindra with the permission of Jogesh Chandra, resided therein; Mukunda, Bipin and Manindra and Mukunda having died without leaving any issue, Jogesh Chandra transferred the suit land to the defendant No. 1 by a registered will on the basis of which he owned and possessed the suit land and since he had been possessing the suit land physically, the preparation of the S.A. record in the name of Bipin and others was wrong; the defendant No.1 after coming to know about the wrong recording of S.A. record, filed Title Suit No.30 of 1985 in Falgun 1391 which was decreed on 25.5.1985. The plaintiff having requested the defendant No.1 to accommodate him in the suit premises for same period, he out of sympathy, allowed the plaintiff to stay in the suit premises and the alleged deed on the basis of which the 'plaintiff claimed title is fraudulent and the plaintiff had not title in the suit land.