ZOHIRUDDIN MAJUMDAR Vs. SALAMATULLAH

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 15.12.2005 passed by the High Court Division in Civil Revision No. 4375 of 2003 discharging the Rule.

(2.) Short facts are that the plaintiff instituted Title Suit No.31 of 1992 in the Court of Senior Assistant Judge, Feni sadar for a declaration that the deed of gift dated 14.01.1981 executed by Salamatullah Majumder in favour of his sons by second wife defendant Nos.1-5 is void, illegal and inoperative. Salamatullah was a monthly tenant in respect of a shop in the building under Bazlus Sobhan, a lawyer of Feni. For arrears of rent Bazlus Sobhan filed Title Suit No.130 of 1980 in the 2nd Court of Munsif (now assistant Judge), Fern for ejectment of Salamatullah Majumder. Finding every possibility of losing Salamatullah made the gift in question in favour of his sons, defendant Nos.1-5, although he had no saleable interest in the shop. Thereafter, Bazlus Sobhan sold the suit land to Salamatullah by kabala dated 03.01.1985. The purchaser got his name mutated in the records of the Revenue Department and has been paying rent, holding taxes etc. Amena Khatun fraudulently created a deed of gift in respect of 35 decimals land (not suit land) in favour of her sons. The plaintiff brought Title Suit No. 73 of 1985 for setting aside this deed of gift and the matter was compromised. The plaintiff recently learnt about the deed of gift dated 14.01.1981 and instituted the present suit.

(3.) The defendant Nos. 1-5 contested the suit by filing written statement denying the material allegations made in the plaint. Their case is that the plaintiff was a varatia under Bazlus Sobhan and was in possession for more then 30 years and S.A. Khatian was prepared in his name. The plaintiff made a gift of the land along with the shop standing thereon in favour of the defendant Nos.1-5, his sons by 2nd wife by registered deed of gift. Bazlus Sobhan instituted Title Suit No. 130 of 1980 for ejectment of the plaintiff but the defendant Nos.1-5 were not made parties in the suit. They filed application for their addition as parties in the suit but the trial Court rejected their prayer. The defendant preferred Civil Revision No.4 of 1983 in the Court of District Judge, Noakhali which was subsequently renumbered as Civil Revision No.8 of 1985. During pendency of the Civil Revision, Bazlus Sobhan sold the suit land by kabala dated 03.01.1985 in favour of Salamatullah Mazumder. So, under Section 43 of the Transfer of Property Act the defendants have become owners of the suit property.