S. M. HOSSAIN Vs. LAHAZUDDIN

JUDGEMENT

(1.) This special appeal by leave is granted against the judgment and order dated 16.08.2000 passed by the High Court Division in Civil Revision No.1586 of 1998 discharging the Rule and affirming the order dated 23.03.1998 passed by the Sub-Ordinate Judge, 1st Court, Chittagong in Other Class Suit No.96 of 1996 rejecting the application of the instant petitioner under Order-7, Rule-11 (d) of the Code of Civil Procedure.

(2.) Facts involved in this case, in short, are that the respondent Nos. 1-6 as plaintiffs instituted a suit on 25.08.1996 being Other Class Suit No.96 of 1996 in the 1st Court of Sub-Ordinate Judge, Chittagong praying for declaration that the plaintiff respondent Nos. 1-6 have acquired a title by adverse possession in the suit property and also prayed for confirmation of their possession and the respondents also prayed for other consequential relieves as mentioned in the plaint.

(3.) The case of the respondent Nos.1 to 6 in brief is that the schedule-2 property (which is suit property) originally belonged to defendant No. 1 (Probhabati Chatterjee) that Mohammed Yousuf, Predecessor of respondent Nos. 1 to 6 and Md. Muzammel Hossain J VII ADC (2010) their uncle Abdul Matin Chowdhury hired the suit building at a monthly rent of Tk.707- in the year 1947 from defendant No.1 that plaintiffs/respondent uncle left Chittagong in the year 1972 handing over possession of the suit premises in favour of plaintiffs/respondents father, that Md. Solaiman Chowdhury filed a rent suit against defendant No.1 being S.C.C. Suit No. 516 of 1953 and obtained an expert decree on 04.03.1954; that the suit property was sold in auction on 14.03.1955 in Money Execution Case No 343 of 1954; that the property was auction purchased by defendant No.2 the instant petitioner, who obtained Sale Certificate and took delivery of possession on 10.05.1955; that the auction sale was fraudulent, benami and null and void; that defendant opposite party No. 1 (Probhabati Chatterjee) started Miscellaneous Case No. 69 of 1956 under Order 21 rule 90 in the 1st, Court of Munsif, Sadar Chittagong for setting aside the sale, which was dismissed on 23.11.1959 on contested hearing against which Miscellaneous Appeal No.1 of 1960 was preferred in the Court of learned District Judge, Chittagong, which was also dismissed on contested hearing that Civil Revision No. 1225 of 1960 was preferred against the judgment and other passed in Miscellaneous Appeal No.1 of 1960; that the Rule was discharged on contested hearing on 21.07.1996 by this Honorable Court and the auction sale was confirmed; that the defendant No. 1 (Probhabati Chatterjee) also instituted other class suit No 21 of 1956 in the 1st Court of Munsif; that the said suit was renumbered as other suit No. 52 of 1957 in the Second Court of Munsif on transfer, was also dismissed on 02.06.1966; the appeal against said judgment was disallowed and that the S.A. No. 939 of 1967 was allowed by the Honorable High Court by Judgment dated 02.06.1983 and the suit was sent back on remand to the trial Court, which is said to be pending; that during pendency of the other class suit No.21 of 1956, plaintiffs/respondents father entered into a sale agreement for purchasing the suit property at a sum of Tk. 15,000/- executed by the Constituted Attorney of defendant No.1 on 22.05.1957 and a sum of Tk. 4000/- was paid to him as earnest money, that Md. Yousuf would continue to pay rent till Kabala is registered; that thereafter, plaintiffs/respondents father paid a further sum of Tk. 11,000/- in two installments to the said Attorney leaving a balance of Tk. 1000/- that balance amount was refused by the attorney on tender by the plaintiffs/respondents father; that said Attorney also refused to execute the kabala on 07.01.1972; since then the plaintiffs/respondent Nos.1 to 6 are continuing in adverse possession by asserting their own title; that the plaintiffs/respondents have acquired title by adverse possession. The instant petitioner filed two Rent Suits against the plaintiffs/respondents father and uncle numbered as money suit No.92 of 1960 and Money Suit No.97 of 1066 in the 1st, Court of Munsif; that both the suits ware stayed in Civil Revision No.1142 of 1969 preferred by plaintiffs/respondents father Md. Yousuf and their uncle Abdul Matin; that both the Civil Revision No. 1225 of 1960 and Civil Revision No 1142 of 1969 were heard analogously and both the Rules were discharged on 21.07.1996 on contested hearing; that the petitioner and respondent Nos.2-27 are threatening the plaintiffs/respondent Nos.1 to 6 with dispossession and trying to dispossess them by force, hence the suit.