SHAHJAHAN MRIDHA Vs. JALAL SIKDER

JUDGEMENT

(1.) The petitioner, the defendant, seeks leave to appeal against the judgment and order dated 03-08-2005 passed by a Single Bench of the High Court Division in Civil Revision No. 6353 of 2002 making the Rule absolute and thereupon setting aside the judgment and decree dated 25-08-2002 of the learned Joint District Judge, 1st Court, Rajbari in Title Appeal No. 90 of 2002. The appeal was filed, against judgment and decree dated April 23, 2002 in Title Suit No.352 of 1999 of the Court of Assistant Judge, Rajbari.

(2.) The short facts necessary for the purpose of disposal of the petition are that the plaintiff-respondent-petitioners filed Title Suit No. 35 of 1999 against the defendant-appellant-opposite party No.1 for declaration of title and khas possession of the suit land. The plaintiffs stated that the suit jote of the scheduled lands situated under Mouza-Khankhanapur, p.5. and District Rajbari in R.S. Khatian No. 419 and S.A. Khatian No. 464 belonged to a family of owners-in-possession consisting of Amir Mridha, Mohiuddin Mridha, Hazu Khatun, Jahirun Bibi and Amena Khatoon, who as R. S. recorded tenants held the lands in ejmali. It transpired that the cosharer tenant Amir Mridha died unmarried leaving behind his brother Mohiuddin Mridha, sisters Hazu Khatoon and Jahirun Bibi and mother Amena Khatoon as his heirs and successors. The said Hazu Khatoon and Jahirun Bibi sold .97 decimals and .13 decimals of land to their brother Mohiuddin on 12-02-1949 by registered kabala and handed over possession to him. The said Mohiuddin Mridha sold .30 decimals of land which Mohiuddin got by inheritance through registered kabala on 14-10-1950 to Shundari Nessa, wife of Nazar Ali Pramanik and handed over the possession of the same to her. The said Sundari Nessa possessing .30 decimals of lands through her husband Nazar Ali Pramanik died before the S.A. operation leaving her only son Abdul Khaleque Pramanik and her husband Nazar Ali Pramanik as her heirs and successors, After the death of Nazar Ali Pramanik, Abdul Khaleque Pramink inherited his father's share later selling his lands to Shushil Kumar Bhokta through registered kabala on 24-02-1975 only to buy back Shushil Kumar's lands through registered kabala on 18-02-1978. Subsequently, Abdul Khaleque Pramanik being the owner in possession of the lands sold the same on 18-02-1993 by kabala deed No. 8817 registered on 18-12-1993 to the plaintiff Nos. 1-2 and handed over possession to them. It is against this backdrop that the defendant filed Title Suit No.155 of 1990 which was dismissed for default. The plaintiffs filed Case No.30 of 1994 in the Union Parishad against the defendant No.1 for having cut away bamboos from lot No.5567 by force, taken possession and created house thereon, which was not contested by the defendants and plaintiffs got an ex parte order of compensation. The defendant also forcibly took possession of some lands that, wee initially subject of a wrong entry in the B.S. records lat was subsequently corrected in favour if plaintiffs upon an objection filed by hem. That notwithstanding, the defendant, thereafter, proving unwilling to give up Possession of the suit lands on one plea or the other at the plaintiffs request and on 36-03-1999 the defendant having refused to remove his house there from, the plaintiffs filed the aforesaid Title Suit praying for declaration of title and for khas possession.

(3.) The defendant No.1 contested the suit by filing writ and statement denying the material allegations so made by the plaintiffs specially on account of the history of the title of the suit lands, contending, inter alia, that Mohiuddin Mridha never parted with the suit lands as stated by the plaintiffs. But instead died owning and possessing of the suit lands leaving his three sons, Shahjahan Mridha, Malek Mridha and Selim Mridha and his first wife Jamiran Nessa and daughter Beauty Khatoon. It was also stated that the defendant No.1, therefore, appropriately has a dwelling house in the suit lands paying taxes to the Union Parishad. In this regard, the defendant No.1 claimed that the documents relied upon by the plaintiffs not being genuine and, therefore, not acted upon, the plaintiffs have not right, title, interest and possession of the suit lands.