MD. RAFIQ UDDIN Vs. MD. KHORSHED ALI MOLLAH

JUDGEMENT

(1.) This is an application under Article 103 of the Constitution of the People's Republic of Bangladesh directed against the judgment and order dated 28.03.2005 passed by the High Court Division in Civil Revision Case No. 5406 of 2002 making the Rule absolute setting aside the judgment and decree dated 11.06.2002 passed by the Additional District Judge, Rajshahi in Title Appeal No. 46 of 2002 allowing the appeal and reversing those of dated 30.01.2002 passed by the Joint District Judge, 1st Court, Rajshahi in other Class Suit No. 235 of 1983 decreeing the Suit.

(2.) Respondent Nos.1-6 as plaintiffs instituted other Class suit No. 235 of 83 in the Court of subordinate Judge, Rajshahi for decree of declaration of their right and title in the Kha schedule property against the defendants stating that the schedule 'Ka' land of the plaint was owned by late Majnani Bewa. The suit lot-I property was under her Khas possession, while melst-2 property was enjoyed by Her by granting Korfa Pattan and the land was recorded in C.S. Khatian in her name accordingly. The property in 1st-1 was shown as her own property, while 1st-2 property was recorded showing under possession of Korfa tenants in Khatian Nos. 1538, 1550. One of the Korfa tenants Ibrahim Mollah surrendered his Korfa right to the original landlady Manjony Bewa and the other Korfa tenants abandoned the property and it was resumed by the owner Majnony Bewa as her Khas possession and was enjoyed by her. In the year of 1936 by oral gift she transferred entire property to one Monir son of her sister, who was also a son of her husband's brother Syed Ali Mollah. At the time of her death Syed Ali Mollah was a minor and Ibrahim Mollah used to look after the property of Monor Syed Ali Mollah. Manjony Bewa and Sajen Bewa were full sisters and the father of Monir named Syed Ali Mollah was husband's brother of Manjony Bewa Manjany died 'issueless' and on the death of Manjony Bewa and Ibrahim Mollah, Syed Ali Mollah became the owner in possession of the Kha schedule property under Khatian No. 1539 by way of gift and also by way of inheritance from his father and mother. After the death of Ibrahim Mollah, Syed Ali Mollah married a nice of Ibrahim Mondal of the locality. Ibrahim Mondal used to look after the property of Syed Ali Mollah and himself took the Job for recording the property in S.A. record in the name of Syed Ali Mollah and he reported that record was made in the name of Syed Ali Mollah. Syed Ah Mollah remained content with said report of recording. It is also stated that Syed Ali Mollah was a half mad, short in sight and hearing. Syed Ali Mollah died |eaving plaintiffs Nos.1-4 as sons, plaintiff No.5 widow and two daughters, plaintiffs Nos. 6 and 7 who all became owners in possession of the property and are paying rents and in the meantime, the R.S. survey commenced. The property in schedule 'Kha' out of Ka schedule property was recorded in their names. The plaintiffs were possessing 'Kha' schedule property on payment of rents peacefully without any obstruction. The defendants suddenly claimed right and title in 'Kha' schedule property. Then, the plaintiffs on obtaining a certified, copy of the R.S. khatian on 08.05.1983 from collectorate, came to know about the erroneous recording. The recording of 'Kha' schedule property out of schedule 'Ka1 property in the name of defendants was illegal. Ibrahim Mondal got it recorded in S.A. record in the name of Ibrahim Mondal instead of Ibrahim Mollah and in the names of his own daughters and wife. The defendants have no right, title and interest in the suit property. The claim of defendants in the suit property creating a cloud in the right and title of the plaintiffs and the suit was filed for removal of said cloud.

(3.) The defendants contested the suit by filing written statement denying the plaint Case stating that the suit was not maintainable in present form and was barred under the law of limitation. There was defect of parties. The Suit was not properly valued. The defendants stated that the suit land under C.S. khatians Nos. 1537, 1538 and 1550 were originally owned by Manjony Bewa, who failed to pay rents, and consequently the property was sold in auction, and one Ibrahim Mondal purchased it in auction sale and on getting possession of the property owned the property peacefully; Ibrahim Mondal paid rents for 10.34 acres of land at fixed Jama at Tk.33.00 to the Raja Birendra Nath Roy Bhadur Estate, Natore in his name and paid rents. He was also locally known as chute Ibrahim Mondal. He subsequently transferred property measuring 10.34, by registered deed of Heba dated 12.10.1946 to his wife Sabiran Bibi alias Sabran Bibi, and daughter Rokeya Khatun. The wife and daughters owned and possessed the entire property. Rokeya by a deed of Heba dated 11.1.1958 transferred 3.30 acres of land to her husband Abdul Khaleque Khan, who in his turn enjoyed the property on payment of rents in his name. It was mentioned that Sabiran Bibi and Rokeya had inducted a Korfa tenant in 2.86 acres of and out of 10.34 acres of land and they had been possessing 7.48 acres of land as Rokeya made gift for 3.30 acres there remained 4.18 acres of land to them. Thus Abdul Khaleque, Sabiran and Rokeya possessed the land on payment of rents. By a sale deed dated 26.04.1967 Abdul Khaleque transferred his 3.30 decimals of land to his wife Rokeya, in lieu of her dower. Thus Sabiran and Rokeya begum possessed 7.48 acres of land.