MD. SHOUKAT ALI HOWLADER Vs. NUR BOX HOWLADER

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 10.05.2006 passed by the High Court division in Civil Revision No. 4683 of 1999 making the Rule absolute reversing the judgment and decree dated 29.06.1999 passed by the Subordinate Judge, Barisal in Title Appeal No. 93 of 1998 setting aside those dated 26.02.1998 passed by the Assistant Judge, Muladi, Barisal in Title Suit No. 97 of 1985 decreeing the suit.

(2.) The facts of the case, in short, are that the plaintiffs filed Title Suit No. 97 of 1985 in the Court of Assistant Judge, Mulladi, Barisal for partition of the land as described in the schedule-'Ka' to the plaint alleging, inter alia, that the suit land appertaining to Petty Settlement Khatian No. 70 covering and area of 9.02 acres originally belonged to three brothers namely Hamid Ali, Wahed Ali and Sabder Ali. The plaintiffs are the heirs of Hamid Ali and Wahed Ali. On the other hand, the defendants are the heirs of Sabder Ali. At the time of preparation of R.S. subsequent to S.A. Khatian, more share then that of the defendants were entitled, was recorded in the name of the defendants. The plaintiffs were entitled to get 2/3rd share covering and area of 6.02 acres as heirs of Hamid Ali and Wahed Ali. On the other hand, the defendants were entitled to get 1/3rd share covering an area of 3.01 acres as left by their predecessor-in-interest, Sabder Ali. As the suit land was not earlier partitioned by metes and bounds so the plaintiffs requested the defendants to make partition of the suit land amicably but they did not pay heed, hence the plaintiffs instituted the instant for partition.

(3.) The defendant No.1 contested the suit by filing written statement denying the entire material allegation contending, inter alia, that the suit was not maintainable, it was barred by limitation and also barred waiver, estoppel and acquiescence. His specific case, in short, was i that the suit land appertaining to Petty Settlement Khatian No. 70 covering an area of 9.02 belonged to Hamid Ali, Wahed Ali and Sabder Ali in equal share. Hamid Ali, Wahed Ali and Sabder Ali sold 1/3rd share covering an area of 2.226 acres of land from the Petty Settlement Khatian No.70 to Rupjan Bibi, wife of Sabder Ali and mother of the defendants. Accordingly, Rupjan Bibi's name was recorded correctly in both R.S. and S.A. Khatians. The defendants have been possessing the said land. He prayed for dismissal of the suit.