KHORSHED ALAM (MD) Vs. HAZI MOHIUDDIN

JUDGEMENT

(1.) Delay is condoned.

(2.) Shortly stated the relevant facts are that the petitioner as plaintiff instituted Title Suit No. 306 of 1989 and subsequently was renumbered as Title Suit No. 62 of 1996 in the 4th Court of Assistant Judge, Dhaka for partition of 0.65 acres of land out of 1.35 acres of Plot No. 125 of CS Khatian No.53 of Mouza Gajmahal, PS Mohammadpur, District-Dhaka claiming title and interest in 0.02 acre of land, stating to the effect, that 1.35 acres of land of CS Plot No. 125 appertaining to CS Khatian No.53 of Mouza 248 Gajmahal, PS Mohammadpur (at present PS Dhanmondi) along with lands of CS Plot Nos.124, 125,130 and 133 of CS Khatian No.53 originally belonged to Sk Dilbar, who died leaving behind his two sons Alimuddin and Nizamuddin and a daughter Maleka Bibi. Alimuddin sold his entire share to his brother Nizamuddin in 1931 by a registered sale deed. Thereafter, Maleka Bibi by an amicable partition with her brother Nizamuddin got 0.72 acre of CS Plot No.133 in her exclusive 'saham' and Nizamuddin got the remaining land of that plot and suit Plot No.125 with an area of 1.35 acres in his exclusive 'saham'. On 8-6-1936 Nizamuddin sold specified 0.65 acre of CS Plot No. 125 to Chuni Jamadar and remained in possession of the remaining 0.70 acre of the said plot. Chuni Jamadar sold his purchased 0.65 acre of CS Plot No. 125 to Sk Noor Miah alias Nooruddin Sk and Sk Ashrafuddin on 10-10-1941 by a registered sale deed. Nooruddin died leaving four sons namely Md Hanif, Md Kashem, Md Tota Miah and Md Tareq, three daughters Dil Banu, Bedana Khatun and Zobeda Khatun and two wives Nasera Khatun alias Nasrun Nesa and Hasen Banu (defendant Nos. 6-14) as heirs. Dil Banu and Hasen Banu sold their shares to Md Hanif, Md Kashem, Md. Tota Miah, Md Tareq, Bedana Khatun and Zobeda Khatun on 13-12-4963 by a registered sale deed. Ashrafuddin died leaving behind two sons Abdul Matin and Ainul Haque and three daughters Rokeya Khatun, Angura Khatun and Phool Banu (defendant Nos. 15-18 and 30) as heirs. The heirs of Nooruddin and Ashrafuddin amicably partitioned their properties amongst themselves including 0.65 acre of suit Plot No.125. Pursuant to the said partition Nooruddin's heirs got 17,089 square feet from southern part and Ashrafuddin's heirs got the remaining portion from northern part of the said 0.65 acre. Nooruddin's heirs sold 0.09 acre to defendant No. 28 on 15-6-1987, 0.02 acre to the plaintiff on 12-8-1987 and 0.09 acre to the plaintiff on 15-6-1987 by registered sale deeds. Ambia Khatun, mother of Umme Salma (predecessor of opposite party Nos. 1-10) purchased 0.70 acre of Plot No.125 from the heirs of Nizamuddin on 13-5-1955 and 4-12-1955 by two registered sale deeds (although quantum of the land was wrongly written in the sale deeds). The government acquired 0.45 acre out of 0.70 acre of suit Plot No.125 in LA Case No. 18 of 1949 and 47 of 1950-51 for 'Gajmahal Slaughter House and Tannery' and took over possession of the same from Ambia Khatun, who received compensation for the said acquired land. Ambia Khatun also gifted 7 kathas 5 chhataks of land to Hazaribagh Tannery Masjid from the said plot on 15-10-1985. Defendant No. 28 gifted 0.09 acre of the suit plot to his wife, which he had purchased on 15-64987. The plaintiff thus being the rightful owner of 0.02 acre of the suit plot has possessed the same in ejmali making constructions thereon. The petitioner also stated that the defendant No. 3 in collusion with defendant No. 2 filed Title Suit No. 353 of 1986 for partition in the 2nd Court of the learned Subordinate Judge, the plaintiff tried to be added as parry in the said suit but the suit was dismissed for default. Defendant No.1 in collusion with defendant No. 3 filed Title Suit No.75 of 1985 under section 9 of the Specific Relief Act with a view to evict the plaintiff from his land and obtained a decree on 17-8-1989 against defendant No. 3 although the said defendant No.3 has got no land in suit plot No.125. It has been further stated that the plaintiff has come to know that defendant No.1 is conspiring to evict the plaintiff by putting the said decree into execution. The plaintiff requested the defendants several times and finally on 1-9-1989 to effect an amicable partition but they did not turn up. Moreover, on 10-9-1989 they threatened the plaintiff. Hence/ the suit was filed.

(3.) Defendant Nos.1, 2 and 25 contested the suit by filing separate written statements. Defendant Nos. 25, 28, and 29 also filed separate applications praying for 'saham'. The common contentions raised in the written statements was that the suit was not maintainable in its form and frame, bad for defect of parties and without cause of action.