NURJAHAN BEGUM Vs. NUR RAHMAN AND OTHER

JUDGEMENT

(1.) This petition for leave to appeal arises out of the judgment and decree dated 28.8.2006 of the High Court Division passed in Civil Revision No.309 of 2004 discharging the Rule which was obtained challenging the judgment and decree dated 5.11.2003 passed by the Additional District Judge, Court No. 2, Rangpur in Other Appeal No.5 of 2003 affirming those of dated 24.9.2002 passed by the Joint District Judge Court No.1, Rangpur in Other Suit No. 30 of 1997 dismissing the suit.

(2.) The petitioner, as plaintiff filed the above Other Suit No.30 of 1997 for partition of an area of 4.70 acres of land out of the suit jote and also for declaration that the unregistered Heba Deed dated 19.6.1948 purported to have been executed by Delwar Sheikh is false and collusive on the averments that jote as described in the schedule 'Ka' of the plaint originally belonged to Deyanat Ullah who died leaving behind his only son Delwar Sheikh and the jote as described in schedule Kha of the plaint belonged to plaintiff and Delwar Sheikh and the jote described in schedule 'Ga' and 'Gha' of the plaint belonged to Maherunnessa, the predecessor in interest of the plaintiff and defendant No.1; while they had been possessing the land of schedule 'Ka' and 'Kha', Delwar Sheikh died before preparation of S.A. record leaving behind wife Maherunnessa, one son Nur Rahman the defendant No.1, and one daughter Nurjahan, the plaintiff; thereafter Maherunnessa died leaving behind the defendant No.1 and the plaintiff; the defendant No.1 has been possessing the suit land in ejmali and though S.A. record of some Khatians have been published correctly but at the instance of the defendant No.1 some khatians have been published wrongly; the plaintiff is entitled to get 2.14 acres of land out of 'Ka' schedule, 2.06 acres of land out of Kha schedule, .38 acres of land out of schedule Ga and 12 acres of land out of schedule 'Gha' and that the plaintiff has been possessing total area of 4.70 acres of land in ejmali out of the above jotes and that Delwar Sheikh never transferred any land out of the above jotes in favour of the defendant No.1 and if any such document of transfer is shown by the defendant No.1 that will be a forged arid void document; the plaintiff did not find conducive to possess the suit land in ejmali and so she asked for partition of the suit jotes on 10.11. 1992 which the defendant No.1 denied and hence the suit for partition.

(3.) The defendant Nos.1,16 and 18 contested the suit by filing joint written statement contending inter alia that the land of lot No.5 of schedule Ka belonged to Deyanatullah son Bhwa Sheikh and Deyanatullah had given estafa of the above land to the superior landlord who then sold the same land to the defendant No.1 vide registered deed dated 7.10.1952 and since then the defendant No.1 has been possessing the same and that Deyantullah transferred his rest land in favour of one Manajuddin by registered deed of sale dated 29.9.1995 and Minajuddin sold out an area of .15 acres of land in favour of one Ashraful and an area of.15 acres of land in favour of one Rafiqul and Golam Rabbani by registered deed of sale both dated 4.1.1978; that the land of lot Nos.1 to 4 of schedule Ka and Kha belonged to Dayantullah who died leaving being behind his only son Delwar Sheikh and that the defendant No.1 has purchased an area of .23 acres of land of schedule Kha and that Delwar Sheikh has transferred an area of 11.82 acres of land only out of schedule Ka and kha by an unregistered deed of Heba dated 19.6.48 and thereafter he died leaving behind no properties; that the land of schedule Ga and Gha belonged to Maherunnessa, the predecessor in interest of the plaintiff and defendant No.1, who has gifted out her entire properties orally in favour of the defendant No.1 and since then defendant No.1 has been possessing the same and he has transferred an area of 2.68 acres of land out of the suit jotes in favour of different persons and has been possessing the remaining and that the S.A. records of the suit jote are correct.