SAMSUDDIN NAKIB Vs. SYED FAKRUDDIN AHMED

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 30.6.2D04 of the High Court Division passed in Civil Revision No. 6498 of 2001 discharging the Rule obtained Challenging the judgment and decree dated 23.7.2000 passed by the First Additional District Judge, Barisal in Title Appeal No.47 of 1994 reversing those of dated 9.3.1994 of the learned Subordinate Judge (now Joint District Judge), First Court, Barisal passed in Title Suit No.13 of 1980 decreeing the suit.

(2.) The predecessor of the petitioner Nos.1-19 as well as the predecessors of the respondent Nos. 8-21, as plaintiffs, filed above Title Suit No.13 of 1980 seeking partition of 'Ka' scheduled land and also seeking declaration that the deeds as described in the schedule 'Kha' and Ga to the plaint are illegal, collusive, null and void, fraudulent and not binding upon them on the averments that Jagabandhu Shil was the owner of the suit land and after his death his three sons Krishna Kanta, Protap Chandra and Nishi Kanto owned the suit land in equal shares and the record of right in R.S. Khatian No.1135, shich included Plot Nos. 6550 and 6551, was also prepared in their names; Krishan Kanta transferred his 30 decimals of land in favour of the plaintiff No.1 by a registered patta dated 9.6.1953 and also delivered possession and the plaintiff No.1 is possessing the said land by paying rents; Protap Chandra having died issueless laving behind his widow, Sundari Bala Shil, who along with Krishna Kanta and Nisha Kanta, the reversioners, became the onwer of the portion of Protab Chandra; the record of right in S.A. Khatian No. 970 in respect of 30 decimals of a land in favour of the plaintiff No.1 by a registered patta dated 9.6.1953 and also delivered possession and the plaintiff No.1 is possessing the said land by paying rents; Protap Chandra having died issueless leaving behind his widow, Sundari Bala Shil, who along with Krishan Kanta and Nisha Kanta, the reversions, became the owner of the portion of Protab Chandra; the record of right is S.A. Khatian No. 970 in respect of 30 decimals of land was prepared in the name of the plaintiff No.1 who out of that sold 15 decimals of land in favour of the plaintiff Nos. 2-5 by kabala dated 13.8.1979 and also delivered possession to them and thus the plaintiff Nos.1-5 are possessing the suit land measuring 30 decimals; the balance 60 decimals of and appertaining to Plot Nos. 6550 and 6551 being wrongly recorded in S.A. Khatian No.1446 in the name of Nishi Kanta and Sundari Bala, who left for India, was declared as vested property and was leased out to the defendant No.1 and thus the defendant Nos.1 and 2 who have no right, title, and interest in the land measuring 30 decimals of land which the plaintiff No.1 got by patta dated 9.6.1953; the defendant Nos.1 and 2, on 5.1.1980, claimed the suit land on the basis of two fictitious kabalas dated 27.7.1960 and 18.4.1979 purported the have been executed by plaintiff No.1 and the defendant No. 3 and hence the suit. The defendant Nos. 1 and 2 contested the suit by filing written statement contending that Krishan Kanta has transferred his share to the plaintiff No.1 through a patta dated 9.6.1953 but thereafter the plaintiff No.1 by Kabala dated 27.7.1960 retransferred the same to Krishna Kanta but however in the said kabala dated 27.7.1960, the plaintiff No.1 instead of relevant khatian No.970 and Plot Nos. 6550 and 6551 with an area of .30 acres of land, collusively inserted Khatian No. 937 and Plot Nos. 1399 and 1407 containing an area of .44 acres of land and that after the death of Krishna Kanta, his son, the defendant No.3, having sold out the entire land to the defendant Nos.1 and 2 by kabala dated 18.4.1979 and the defendants Nos.1 and 2 possessing the suit land and the plaintiffs have got no right, title, and possession over the suit land.

(3.) The trial Court, after hearing, decreed the suit. On appeal and the learned Additional district Judge, 1st Court, Barisal, after hearing, allowed the appeal and thereby dismissed the suit. The plaintiffs then moved the High Court Division and obtained Rule and after hearing the High Court Division discharged the Rule.