RAGHUNATH SARKER Vs. RAMNATH SARKER

JUDGEMENT

(1.) This appeal, by way of leave, at the instance of the plaintiff, is directed against the judgment and order dated 21.5.2001 passed by the High Court Division discharging the rule in Civil Revision No. 448 of 2000 filed against the judgment and decree dated 25. 08. 1999 passed by Additional District Judge, 5th Court, Dhaka, in Title Appeal No. 333 of 1999 reversing those dated 31.05.1999 of the Assistant Judge, Savar Thana, Dhaka in Title Suit No. 181 of 1996 and remanding the suit for re-trial.

(2.) The appellant filed the suit for declaring that the 'Kha' schedule deed appearing in the plaint is void, collusive, illegal, fraudulent, forged and not binding upon the plaintiff and the plaintiffs case, in short, is that the lands mentioned in the Kha schedule in the plaint belonged to Horidash Sarker, and that he lived in the 'Kha' schedule land along with his wife and 2 sons. The defendant with a view to grabbing the entire paternal properties erected the deed of gift No. 3028 dated 02.03.1987, one day the defendant brought a vendee to sell the land and then the plaintiff asked the defendant why he has brought the vendee without telling him about the transaction and the defendant disclosed that their father (Horidash) has gifted all his properties to him. The plaintiff thereafter obtained the certified copy of the deed of gift and filed the instant suit and the further case of the plaintiff is that the plaintiff and the defendant have been living in plot No.15 of Mazidia Mouza from life time of their father. The suit land is also being possessed by the plaintiff as he is the 50% owner of the 'Kha' schedule land mentioned in the plaint, the said deed of gift created cloud on his title and hence the plaintiff brought the suit for necessary relief in the matter.

(3.) The defendant contested the suit by filing written statements and denied all the material allegations made in the plaint and contended, inter alia, that the suit is not maintainable in its present form and it is barred by limitation and that Haridas lived with him and the relationship between the plaintiff and Haridas was not at all good and that Haridas gifted all his properties to him by the registered deed No. 3028 dated 02.03.1987; that the plaintiff has filed the suit by making false statements and the defendant accordingly prayed for dismissal of the suit.