ABDUL NOOR Vs. MAKHAN MIA

JUDGEMENT

(1.) These three appeals by leave are directed against the judgment and decree dated 24-2-1997 passed by a Division Bench of the High Court Division in First Appeal Nos. 32 of 1994, 92 of 1994 and 147 of 1994 disposing of the same and setting aside the judgment and decree dated 22-6-1993 passed by the learned Subordinate Judge (now Joint District Judge), Artha Rin Adalat, Sylhet in Title Suit No. 71 of 1991 dismissing the suit.

(2.) The plaintiff instituted Title Suit No. 85 of 1983 in the 2nd Court of Subordinate Judge (now Joint District Judge), Sylhet praying for partition. The suit was subsequently transferred to the Subordinate Judge (now Joint District Judge), Artha Rin Adalat, Sylhet and renumbered as Title Suit No. 71 of 1991 stating, inter alia, that the land of SS Plot Nos. 7430, 7431 and 7432 were wrongly recorded in settlement records but, in fact, the total area of the land according to physical possession and measurement was 0.42 acres as described fully in the schedule of the plaint and the same was ejmali. The further case is, that Moulvi Mukti Miah, the predecessor-in-interest of the parties to the suit while owning and possessing the 16 annas share of the suit land died leaving behind two sons, Abdul Karim and Haji Abdul Majid and one daughter, Aimona Bibi. Thus, each son inherited 2/5th share in the suit land and the daughter, Aimona inherited 1/5th share in the suit land. For the sake of convenience the said Haji Abdul Mazid went into possession of the whole of Dag No. 7430 and Abdul Karim came to possess the whole of Dag No. 7432 and the said three co-sharers owned and possessed Dag No. 7431 in ejmali. But the said Plot No. 7431 was wrongly recorded in the names of Haji Abdul Mazid and Abdul Kadir, son of Abdul Karim, in 12 annas and 4 annas shares respectively. Abdul Karim, while possessing Dag No. 7432 died leaving behind five sons, Abdul Kadir, Abdur Rahman, Abdul Latif, Abdul Aziz, Abdul Hamid and widow Mofizunnessa as his heirs. Thereafter, Mofizunnessa died leaving behind her sons as her heirs. Abdul Latif, son of Abdul Karim died leaving behind his only heir, Abdul Jalil, defendant No. 44. Abdul Aziz died leaving behind six sons, Abdus Salam, Abdus Sattar, Abdul Jabbar, Abdul Hannan, Abdus Sobhan and Abdul Mannan and two daughters, defendant Nos. 41 and 42, and a widow, Halima Khatun, defendant No. 43.

(3.) The defendant Nos. 1, 3, 4, 6, 9, 10, 12, 22, 23, 47, 48, 49, 68, 69 and 2(Ka) contested the suit by filing written statement contending, inter-alia, that Mukti Miah was the original owner in possession of the suit land which fell in the category of homestead. Mukti Miah died leaving two sons, Abdul Karim and Abdul Mazid and one daughter, Aimona. Mukti Miah inducted his two sons into possession of demarcated portions of the suit land by way of gift during his lifetime. Mukti Miah did not give any portion of the suit land to his daughter Aimona Bibi but gave her share as gift at the time of marriage. Aimona Bibi did not claim any share in the suit land during her lifetime nor, did her daughters claim any share in the said property. Haji Abdul Mazid died leaving behind three sons, Abdul Hakim, the plaintiff No. 1 and Badsha Miah and three daughters, Samina, Kulsum Bibi and Saro Bibi. Samina Bibi transferred her share in the suit land to the present respondent No. 1 by a registered deed. Abdul Mazid and Abdul Karim were the recorded owners of Dag No. 7431 in 12 annas and 4 annas shares respectively. Abdul Mazid was the recorded owner of the whole of Plot No. 7430 and during his lifetime, Abdul Mazid transferred the whole of Plot No. 7430 to Haji Ismail Miah. The widow of Abdul Mazid transferred her 2 Pons of land by way of gift to the present respondent No. 1. Abdul Mazid had a shoproom at Bandar Bazar and the said shop room was existent. The plaintiff and defendant No. 1 used to run business from the said shop room. Aimona did not claim any share in the suit land during the lifetime of Mukti Miah. The defendant No. 1 also prayed for the allotment of a separate saham in respect of his share in the suit property.