(1.) This Appeal, by leave, is directed against the judgment and order dated 03.04.2002 passed by the High Court Division in Civil Revision No.830 of 1999 making the Rule absolute-in-part thereby sending the suit on remand setting aside the judgment and decree dated 14.02.1999 of the District Judge, Bhola in Title Appeal No.66 of 1998 reversing those dated 28.07.1998 of the Assistant Judge, Borhanuddin Upazila Bhola, in Title Suit No.53 of 1994 decreeing the suit.
(2.) The facts of the case, in short, are that the plaintiff-respondent Nos.1-3 filed Title Suit No. 53 of 1994 stating, inter alia, that 718 acre of land belonged to Abdul Hakim Hawlader, that there are 4 huts in the said land, that he died leaving three sons, six daughters and two widows. Joygun Bibi one of the widows died leaving son Mojibul Haque Hawlader and three daughters, that Manu Miah one of the sons of Abdul Hakim Hawlader exchanged his share in the Chandina Bhiti (the land in suit) with Mojibul Haque Hawlader, that one of the daughters of Abdul Hakim Hawlader, by name Morjina Khatun instituted Partition Suit No.265 of 1959 in the Court of 1st Munsif and the same was preliminarily decreed on compromise and in terms of the preliminary decree Mojibul Haque got .505 acre of land in suit on the northern side with three huts, that Abdul Hakim Hawlader's son Md. Sadek Hawlader got 203 acre of land with the hut on the southern side, that Keramat Ali husband of Morjina Khatun (daughter of Abdul Hakim Hawlader) got .090 acre of land, that Sadek sold his share to the extent of .203 acre to the defendant Nos. 1 and 3-7 that while dispute arose between Keramat Ali and the plaintiffs, predecessor Mojibul Haque, Mojibul Haque filed a case in the Court of Sub-Divisional Magistrate with a prayer for demarcating his share to the extent of 0.505 acre and that in presence of the parties the surveyor measured the land and demarcated 0.505 acre of land on 2.10.1961 and since then Mojibul Haque and after him the plaintiffs are in possession and enjoyment of the land in suit; that Mojibul Haque inducted tenants in the three huts and the plaintiffs are in possession of the land through the tenants, the defendants, that defendant No.1 upon executing an agreement of tenancy for 5 years entered into the hut in holding No.1075 at a monthly rent of Tk.100.00, that defendant having not cleared the rent, a suit, being no.22 of 1975, was filed for realization of rent of Tk. 1200/- and the same was decreed, that the defendant went on appeal and the same was allowed, that Mojibul Haque gifted the property in suit to the plaintiffs by a registered heba deed dated 24.07.1979, that defendants obtained order for opening separate khatian in their names for 0.303 acre of land and a khatian was opened in respect of part of the land claimed by the plaintiffs but plaintiffs having had objected to that the khatian was cancelled and thereby khatian prepared in the name of the plaintiffs in respect of 0.505 acre of land was maintained, that the defendants upon moving the partition entered into the southern side of holding No.213 and thereby possessing the land and hut of holding Nos.213 and 214, that defendants on 21.12.1991 started repairing of the huts of old holding Nos.213 and 214 (new holding Nos.1075 and 1076) and thereby caused change in the structures which were standing on the said holding, that defendants Nos.3-9 are in collusion with defendant Nos.1 and 2 and the said defendants are rendering assistance to the defendant Nos.1 and 2 for unauthorized occupation of the land in suit.
(3.) The defendant Nos. 1 and 2 contested the suit by filing written statement denying the material averments made in the plaint and stating, inter alia, that Morjina Khatun, daughter of Abdul Hakim Hawlader seeking partition of her ancestral property filed partition Suit No.265 of 1959 in the 1st Court of Munsif and the suit as compromised amongst the parties. The quantity of land in suit was 0.808 acre, that defendant's predecessor Keramat Ali was the husband of Morjina Khatun, one of the daughters of Abdul Hakim Hawlader, that in the aforesaid partition suit plaintiffs, predecessor Mozibul Haque was defendant No.1 and Abdul Hakim Hawlader's son Md. Sadek was defendant No. 2; that Keramat Ali predecessor of the present defendants was defendant No.9; that Abdul Hakim Hawlader's daughter Sabeda Khatun was defendant No.8; that in the said partition suit plaintiffs predecessor got 0.505 acre of land; that Sadek Hawlader got 0.203 acre of land and Keramat Ali got 0.1 acre of land; that Sadek sold his share measuring 0.203 acre of land to Keramat Ali by the kabala dated 23.11.1960 and thus Keramat Ali acquired 0.303 acre of land; that in respect of the said and present Municipal holdings are 1075 and 1076 and 1079 at one time 213, 217, 216, later on 1176, 1179 and 1180; that to deprive the present defendants, Mojibul Haque predecessor of the plaintiff filed C.R. Case No. 1556 of the 1976 in the Court of Magistrate, Bhola; that Advocate Nasir Uddin, Tarikul Islam and Syed Ahmed were appointed Arbitrator and thereupon an application for withdrawal of the case was filed on 18.04.1977; that signed blank papers were kept in the custody of the Arbitrators and that plaintiffs predecessor collected the signed blank papers from the Arbitrators and manufactured the alleged tenancy agreement, that plaintiffs are enjoying their 0.505 acre of land, the plaintiffs predecessor Mozibul Haque again filed C.R. Case No.1946 of 1977 and the said case was decided against the defendants and thereupon the defendants filed Criminal Appeal No.11(2) of 1980; that plaintiffs predecessor filed suit in the Court of Munsif seeking eviction of the defendants stating that the defendants are his tenants and had defaulted in the payment of rent and the said suit was dismissed on 30.03.1978; that defendants got the land recorded in Khatian No. 483/1 and paying rent as against that Khatian; that the Keramat Ali died leaving seven sons and a widow, that defendant Nos. 3-5 and 7-9 had gifted their shares on 08.01.1991 to the defendant No.1; that when the defendant No.1 claimed his share to the extent of 0.303 acre of land plaintiff No.1 filed a case under Section 144 of the Code of Criminal Procedure in the Court of Magistrate against the defendants Nos. 1 and 2 thereupon M.P. Case No.28 of 1992 was registered and the same upon hearing the parties was closed by the order dated 23.02.1992; that the plaintiffs have filed the suit making untrue statement.