MD. YASIN KHAN Vs. AYUB ALI KHAN

JUDGEMENT

(1.) This Appeal, by leave, is directed against the judgment and order dated 03.11.1998 passed by the High Court Division in Civil Revision No. 147 of 1995 making the Rule absolute setting aside the judgment and decree dated 17.08.1994 passed by the Subordinate Judge, 3rd Court, Barisal in Title Appeal No.77 of 1993 thereby affirming those dated 11.03.1993 passed by the Assistant Judge, 2nd Additional Court, Barisal in Title Suit No.39 of 1991 drawing a preliminary decree for separate saham for 2.05 acres reducing the same from 3.81 acres.

(2.) The facts of the case, in short, are that the plaintiff filed Title Suit No. 39 of 1991 in the 1st Court of Assistant Judge, Barisal claiming inheritance from Achimunnessa through her daughter Elimunnessa and it was asserted that Achimunnessa died leaving behind her only daughter Elimunnessa who inherited her entire property duly and correctly recorded during R.S. and S.A.Khatian in the name of Achimunnessa and the plaintiff laid further claim by inheritance from Money Ali Khan, predecessor of the appellant to the extent of 36 acres from S.A. Khatian Nos.377, 378, 288 and 300 and by purchase from the defendant No.1, Abdul Kader Khan being their heir of recorded tenant Golam Habib by exhibit-1 to the extent of 34 acres from State Acquisition Khatian Nos. 9 and 282.

(3.) The defendant Nos. 1, 6-11 contested the suit by filing written statement contending, inter alia, that the suit property originally belonged to Neyamutullah and he was succeeded by his three sons kefayet Khan, Mai Khan and Salamat Khan and it was further alleged that Salamat Khan was succeeded by his son, Ibrahim Khan. Ibrahim Khan died leaving two daughters including Achimunnessa, mother Safar Jan. Achimunnessa inherited the entire interest of her sister and mother after their death and the defendants claimed to be successive heir of Kefayet Khan and Mai Kahan and claimed their interest in the property of Achimunnessa as distant kindred to the extent to 8 annas.