MOST. RASHIDA KHATUN Vs. SAKINA BEGUM

JUDGEMENT

(1.) This Appeal, by leave, is directed against the impugned judgment and order dated 24.07.2001 passed by a Single Bench of the High Court Division in Civil Revision No.4746 of 1991 discharging the Rule affirming the judgment and decree dated 28.03.1988 in Title Appeal No. 321 of 1974 by the Subordinate Judge, 2nd Court, Chittagong reversing those dated 27.09.1974 in Other Suit No.55 of 1972 by the Munsif, North Raozan, Chittagong decreeing the suit.

(2.) The plaintiff-appellant instituted Other Suit No.55 of 1972 in the Court of the then Munsif at North Raozan, Chittagong against the respondents praying for declaration of title and recovery of khas possession of 'Ka' schedule land and also for declaration of title and confirmation of possession in the 'Kha' schedule land along with other reliefs stating, inter alia, that R.S. Plot Nos.4833 and 4831 originally belonged to Azimuddin Khalifa and both the plots comprised homestead and cartilage. Azimuddin Khalifa sold the said suit plots along with other lands to one Siddique Ahmed Chowdhury by a registered kabala dated 22.05.1904 vide Exhibit-3 and that Siddique Ahmed Chowdhury obtained possession and possessed for 7 years and then sold to Sarfunnessa by a registered kabala dated 22.03.1911 Exhibit-2(c). But the suit property was mortgaged in favour of one Abdul Hoque by a registered deed of mortgage dated 08.01.1897 by Azimuddin Khalifa. For this the mortgage suit No. 148 of 1926 was filed and the said suit was decreed on 12.09.1928, put the decree into execution and the suit property was sold in auction on 12.02.1931 and the decree-holder purchased the suit property. The sale was confirmed on 25.04.1931 in the name of Tozimul Ali. That one Noor Ahmed claiming through Tozimul Ali filed Other Suit No. 13 of 1966 against the plaintiff-appellant but ultimately that suit was compromised admitting the title and possession of the plaintiff-appellant vide Annexure-'A'. That the defendant No.2 is the wife of defendant No.1 and defendant Nos.3 and 4 are their sons. That they are men of desperate and dangerous in nature and during the war of liberation they with help of Noor Ahmed and local Chairman Abdul Wadud Chowdhury forcibly dispossessed the 'Ka' schedule land on 15.10.1971 and threatened to dispossess from the 'Kha' schedule land Hence the suit.

(3.) The defendant-respondent Nos.1 and 2 contested the suit upon filing the written statement by Sona Mia denying the averment of the plaint alleging, inter alia, that the Sarfunnessa, wife of Azimuddin Khaljfa brought Title Suit No. 241 of 1941 against one Hadisur Rahman and others claiming her title in the suit land but she died leaving only brother, Saleh Ahmed and a daughter, Mymuna Khatun and they were substituted in the suit and the suit was decreed. That deceased defendant No.1, Sona Mia was the sister's son of Saleh Ahmed and was reared up from his childhood and so he sold 0.07 acres of land from the Suit Plot No.4833 by a kabala dated 21.11.1945, the R.S. Plot No.4833 by a Kabala dated 21.11.1945. That Saleh Ahmed sold half of the suit land in favour of wife of Noor Ahmed and deceased defendant got the same by purchase. The defendant further contended that R.S. Plot No.3571 was acquired by oral gift. Hence, prayed for dismissed of the suit.