MOZIRULLAH AND OTH­ERS Vs. SHAFUKUDDIN AHMED

JUDGEMENT

(1.) This appeal by leave by defendant Nos.1 and 3 appellants is from the judgment and order dated 16-11-93 passed by a learned Single Judge of the High Court Division in civil Revision No.765 of 1990, making the Rule absolute, thereby setting aside the judgment and decree dated 31-1-90 passed by the learned Subordinate Judge, Feni in Title Appeal No.27 of 1986 dismissing the plaintiff respondent's Suit and reversing those dated 30-1-86 passed by the learned Munsif, Dagan Bhuiyan, District Feni in Title Suit No. 153 of 1984, decreeing the suit.

(2.) The plaintiff respondent filed the suit for declaration of title to acres of land (Schedule-ka) out of a total of .7 acres of land in khatian No. 5, plot No. 202 of Mouza 171 Dagan Bhuiyan (Schedule-kha) and for recovery of possession thereof. It is the case of the plaintiff that Hamid Ali and Azhar Ali, two brothers, by an amicable family partition arranged that Hamid Ali will get .7 acres of land in plot No.202, khatian No.5 (Schedule-kha) and other lands and that Azhar Ali will get .7 acres of land in plot No. 197, khatian No. 3 both of Mouza Dagan Bhuiyan. Accordingly Azhar Ali while in exclusive ownership and possession of his allotted share sold his entire share in khatian No. 3 to Sirajul Haque and divested himself of all interests therein. Hamid Ali sold the entire .7 acres of land in plot No. 202 to his son Bashirullah by a registered deed dated 23-3-53. Bashirullah in his turn sold .3 acres out of .7 acres of land to his brother Hafizullah by a registered deed dated 26-10-60. Thereafter both Bashirullah and Hafizullah sold the entire .7 acres of land to the plaintiff and his mother Hashmater Nessa by a registered deed dated 15-2-65. After the death of the plaintiff's mother the plaintiff has been owning and possessing the Schedule Kha land as her only heir. The Schedul kha land was originally a nal land which the plaintiff converted into a bhiti land. He has constructed a kitchen in the bhiti and has stored some bricks and other house building materials. One Azizul Haque is occupying a portion thereof as a tenant under the plaintiff, the remaining land being in the khas possession of the plaintiff. On 16-12-78 defendant No. 1, a son of Azhar Ali, in the absence of the plaintiff, dispossessed him from the kutcha room in the north eastern portion of Schedule kha land measuring 11/4 acres which is the suit land, the M. R. O. R. khatian has been prepared in the name of the plaintiff's vendor Bashirullah. The plaintiff has mutated his name and has been paying rent. The defendants have no right, title and interest in .7 acres of land of khatian No. 5. Hence the suit.

(3.) Defendant No.1 alone and defendant Nos.2 and 5-7 together filed separate written statements and denied the plaintiff's case. They admitted that there was an amicable partition between the two brothers Hamid Ali and Azhar Ali and that Azhar Ali got in his share .7 acres of land in plot No. 197 in khatian No.3, but it is their common case that Hamid Ali was given .7 acres of land in plot No.192 of khatian No.46 of the same Mouza and Hamid Ali subsequently transferred his entire share of .7 acres in khatian No.46 to one Abdul Gani who made a structure on that land and let out to the Sub-Registrar's office of Dagan Bhuiyan. Defendant No.1 stated in his written statement that his father Azahar Ali had .31/2 acres of share in plot No.202 which he transferred to defendant No.1 and his 5 brothers by two deeds of Hiba-bil-Ewaz dated 14-11-60 and 17-11-60. The six brothers raised the land, constructed a kutcha house and have been conducting therein the business of selling pan and firewood's since long. The plaintiff has not constructed any kutcha house on the north eastern corner of the plot. He has not stored any bricks there. No person called Azizul Huq has any construction there. There has been a fraudulent and wrong recording of rights in the recent khatinas. It is stated by defendant Nos.2 and 5-7 in their written statement that .7 acres of land of plot No.202 of khatian No.5 (schedule kha) remained in the ejmali of Hamid Ali and Azhar Ali. Hamid Ali has no saleable interest in the land of khatian No. 5, plot No. 202 beyond his 8 annas interest i.e. .3 acres. The plaintiff or his vendors Bashirullah and Hafizullah were never owners and possessors of more than .31/2 acres of land in plot No. 202. The plaintiff is not entitled to any decree in the present suit. His remedy lies in a suit for partition seeking separate saham of his own portion of plot No. 202. The present suit is a test case to dislodge the defendants right, title and interest by way of making a foray into .1 acres out of .7 acres of land of plot No.202.