FERASTULLAH SARDER Vs. MD. MOBARAK ALI GAZI

JUDGEMENT

(1.) These petitions for leave to appeal are directed against the judgment and order dated 29.11.2006 passed in Civil Revision No.3467 of 1995 heard and disposed of analogously with Civil Revision No.3466 of 1995 by the High Court Division making the Rule absolute in both the Civil Revision reversing the judgment and decree dated 12.11.1994 passed in Title Appeal No.209 of 1991 heard and disposed of analogously with the Title Appeal No.201 of 19961 dismissing the appeal by the learned Subordinate Judge Artha Rin Adalat, Khulna affirming the judgment and decree dated 13.06.1993 passed in Title Suit No.56 of 1991 by the learned Assistant Judge, Koyra decreeing the suit.

(2.) The facts, in short, are that Ferastullah predecessor of the petitioners as plaintiffs instituted a Title Suit No.56 of 1991 in the court of the learned Assistant Judge Koyra against the respondent for declaration of title and confirmation of possession and permanent injunction on the allegation, inter alia, that the land measuring 162.58 acres of land appertaining to C.S. Khatian No. 294 belonged to Kalachand Gazi, Haziruddin Gazi and Mofizuddin Gazi Kalachand Gazi mortgaged 1.98 acres of land to the plaintiff on 26.04.1943 by registered kabuliat. The plaintiff became korfa tenant under Kalachand Gazi and paid rent to him. The R.S. and S.A. record was made and finally published in the name of the plaintiff. The defendant Nos.1 & 2 fraudulently got their names mutated in Miscellaneous Case No.9 of 1984-85. The notices of that case were not served upon the plaintiff. The plaintiff filed review case against such mutation which was allowed and the previous position of khatian was restored. The notices and sale proclamation of the sale as alleged was not served upon the plaintiff. There was no arrear of rent of the suit land 1.91 acres of land as has been sold at a Tk.153/-. If any documents are filed by the defendant Nos.1 & 2 that will be presumed to be forged, collusive. The plaintiff filed Miscellaneous Case No.6 of 1985-86 which was allowed. Thereafter, the defendant Nos.1 & 2 filed Revision No.22 of 1986 before Additional Deputy Commissioner (Revenue) who was pleased to allow the same. The plaintiff filed a review which was rejected against which the plaintiff filed Appeal No.229 of 1989 before Additional Divisional Commissioner who was pleased to dismiss the same. The order of Additional Divisional Commissioner (Revenue) was challenged by the plaintiff before the Revenue Board which is still pending. On 25.05.1988 from Revision Case No.22 of 1986, the plaintiff for the first time came to know about the forged decree passed in Title Suit No. 273 of 1956. The defendant Nos.1 & 2 filed Title Suit No. 219 of 1989 for permanent injunction which was dismissed against which they preferred Title Appeal No.209 of 1991 which is still pending on 29.09.1991 the defendant Nos.1 & 2 threatened the plaintiff with dispossession and as such he was constrained to file suit.

(3.) The respondent Nos.1 and 2 as defendant Nos.1 and 2 contested the suit by filing a written statement on the allegation, inter-alia, that Kala Chand mortgaged the suit land to Ferastullah on 12.04.1943 For getting back the suit land Kala Chand filed Title Suit No. 273 of 1956 which was decreed on compromise wherein he admitted the claim of these defendants. Thereafter the suit land was sold in auction in certificate cases Nos.7511 of 1959-60 and 1032 of 1961-62 for arrear of rent which was purchased by Abu Taleb and others. Sons of Kala Chand Gazi got delivery of possession through court. Then the auction purchaser sold to these defendants on 12.05.1967 and 13.05.1967 by registered kabalas. These defendants got their names mutated. The plaintiff unsuccessfully moved up land appeal board for getting the auction sale set aside. The suit is bad for defects of parties and hit by law of limitation and also hit by section 42 of the Specific Relief Act.