MD. FAZLUL HAQUE Vs. MD. BAKI

JUDGEMENT

(1.) This petition for leave to appeal has been filed by the defendant-petitioner against the judgment order dated 15th June, 2005 passed by High Court Division in Civil Revision 5028 of 2003 making the Rule absolute reversing the judgment and decree dated 29-03-2003 passed by the District Judge, 1st Court, Manikganj in the title Appeal No.114 of 2001 allowing appeal reversing the judgment and decree dated 24-05-2001 passed by a Senior Assistant Judge, Saturia, Manikganj in Title Suit No.91 of 1999 dismissing the same.

(2.) The Case of the petitioner (opposite-party-plaintiff) before the trial Court was that he (plaintiff) instituted Title Suit 91 of 1999 in the Court of Senior Assistant Judge, Saturia, Manikganj praying for a preliminary decree for partition of .10 decimals of land out of R. S. Plot Nos.172 and 178 of Mouza Dasra under police Station and District Manikganj, stating in nutshell that the land under partition belonged to Amit Kumar Roy, who being in right, title and possession transferred 10 decimals of land by kabala No.966 dated 12-02-1996 in favour of the plaintiff and also transferred 15 decimals of land by another kabala being No.965 dated 12-02-1996 in favour of the defendant No.1. There is a homestead on the land under partition. The plaintiff and the defendant jointly purchased the said homestead. The plaintiff and defendant used to possess the said homestead jointly through bharatia. The defendant has been abstaining from paying rent of the homestead in favour of the plaintiff since June, 1999. The plaintiff demanded partition on May, 1999 and the same was refused by the defendant and as such the suit was filed.

(3.) The defendant No. 1 contested the suit by filing written statement, alleging, inter alia, that the suit land measures an area of .30 decimals out of which .3 decimals of land fell into the road. Thereafter Amit Kumar Roy gave a proclamation for transfer of .30 decimals of land and also gave a proclamation separately for transfer for 'pucca' homestead standing upon the suit land. The price of the homestead was settled at Tk.1,00,000/- the defendant purchased 15 decimals of land along with homestead and the plaintiff purchased only 10 decimals of land. The plaintiff as well as the defendant got possession in their purchased land. The defendant made a boundary wall covering his land, mutated his name and paid rent. The plaintiff did not purchase the homestead. The defendant possessed the same. The fact of payment of rent to the plaintiff is not true and accordingly, the defendant prayed for dismissal of the suit.