AYUB ALI Vs. ALI AKBOR @ KHODA BOKSHA

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 07.12.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 3090 of 2001 discharging the Rule.

(2.) The plaintiff instituted Title Suit No.147 of 1998 in the Court of Senior Assistant Judge, Additional Court, Jhenaidah for declaration of title in the suit land described in the schedule of the plaint stating, inter alia, that the land of C.S. Khatian No.781 belonged to one Golam Ali and Basarat Ali having equal shares of 8 annas each and the land of C.S. Khatian No.803 belonged to Golam Ali, Basarat Ali and Mukta Bibi having 7 annas, 7 annas and 2 annas shares respectively. Golam Ali died unmarried leaving behind his sister, Asirunnessa as his heir and successor. Mukta Bibi also died leaving behind her daughter Asirunnessa as her heir while Asirunnessa was in possession of the property, the land was recorded in her name correctly. Asirunnessa died leaving behind her only son, the plaintiff who has been in possession in the suit land but subsequently the suit land was wrongly recorded in the names of the defendant which created cloud upon his title. Hence is the suit.

(3.) The defendant Nos.1, 3 & 4-6 contested the suit by filing a joint written statement denying the material allegations made in the plaint and contending, inter alia, that the land of C.S. Khatian No. 803 belonged to Golam Ali and others under landlord Mozahar Mollah. For realization of arrear rent the said landlord instituted a rent suit against the tenant and the suit was decreed. In course of execution of the decree, the said land was sold in auction and the landlord the auction purchased the same and made the land khas. Thereafter Mozahar Mollah died leaving behind his two brothers, Abul Hossain and Rehan Uddin as his heirs who settled the suit land along with other lands in favour of Nabu Mondal by registered Kabuliyat dated 09.04.1946. While Nabu Mondal was in possession it was recorded in his name. Thereafter, Nabu Mondal died leaving behind the defendant Nos.4-6 as his heirs. The land of C.S. Khatian No.781 was recorded in the name of Golam Ali and Basarat as tenants under one T.C. Tuidi. The superior interest of T.C. Tuidi was transferred to Moulovi Ismail Hossain Munshi and others. The said Ismail Hossain Munshi and others filed a rent suit and obtained the decree. In course of execution of that decree, the jote was sold in auction and the estate became the auction purchaser. After such purchase the estate made the land khas and thereafter settled the same with Somser Ali Mondal and others in 1350 B.S. on receipt of a Kabuliyat executed by the said tenants. The said Samser Ali and others had been enjoying and possessing the land on payment of rent etc. to the said landlord. The record of right was prepared in their names. They sold the land to Ayub Hossain, Rahim Box and Shariful Islam by registered kabala.