MD. NAIMUDDIN SARDER Vs. MD. ABDUL KALAM

JUDGEMENT

(1.) This is a defendant's appeal following leave and arising out of Judgment dated 2nd August 1983 passed by a Single Judge of the High Court Division (Jessore Bench) in Second Appeal setting aside the judgment and decree of the court of appeal below and restoring those of the trial court.

(2.) Respondent No.1 as plaintiff filed Title Suit No. 208 of 1974 in the Second Court of Munsif, Kushtia on the averments, inter alia, that the suit land measuring .33 decimals recorded in Plot No. 1177 under C.S. Khatian No. 755 originally be longed to Radha Prasanna Biswas and others who took settlement of the land from the C.S. recorded tenant Nabin Chandra Mondal at a jama of Tk. 3/12/- anna in 1329 B.S. Radha Prasanna Biswas and others, possessed the same after settlement and thereafter exchanged the property with the plaintiff in 1356 B.S. and executed a general power of attorney in favour of plaintiffs brother Amjad Hossain. Thereafter, Amjad Hossain executed a kabala in respect of the suit land and other lands in favour of the plaintiff on 11-12-56. Since exchange and execution of kabala deed in his favour the plaintiff has been possessing the suit land through different borgaders. Defendant No. 1 appellant took borga settlement from the plaintiff and possessed the same on delivering plaintiffs share of the produce. The plaintiff being an employee of the Steamer Company very often remained away from his residence. Defendant No.1 refused to deliver plaintiffs share of the borga crop is 1376 B.S. and also refused to vacate the land on demand and thereby dispossessed the plaintiff from the suit land. Defendant No.1 has no right, title and interest in the suit land. Having failed to obtain the land amicably on demand the plaintiff was constrained to file this suit for declaration of title and khas possession.

(3.) Defendant1 Appellant contested the suit by filing a written statement denying all the material allegations made in the plaint. His case, in short, is that the suit property originally belonged to Nabin Chandra Mondal and that he took settlement of .69 decimals of land at a jama of Tk. 2/1/6 pies in 1334 B.S. and thereafter took settlement of 1.00 acre at a jama of Tk. 3/- in 1336 B.S. and that he has since been possessing the land. The rent receiving interest of the Touji was subsequently auction purchased by Jarafat Munshi and Sara Begum and thereafter he paid rent to the new landlords at an amalgamated jama of Tk. 5/1/6 pies. The plaintiff has no title and possession in the suit land who taking advantage of the wrong record during S. A. operation filed this suit with a view to grab the suit property.