ISLAMI BANK BANGLADESH LTD. Vs. ABDUL JALIL

JUDGEMENT

(1.) This Rule was issued calling upon the opposite parties No. 1 to 40 to show cause as to why the order No. 12 dated 27-7-1999 rejecting an application for rejection of the plaint passed by the Subordinate Judge, 5th Court, Dhaka in Title Suit No. 42 of 1999 should not be set aside.

(2.) Defendants are the petitioners before this Court. The opposite parties No. 1 to 40 as plaintiffs instituted the instant suit for a declaration that the decree dated 23-3-1995 passed in Title Suit No. 177 of 1994 (formerly Title Suit No. 92 of 1991) is illegal and invalid and the said decree is not applicable to Ga schedule land. It is further prayed that the land described in Kha Schedule measuring about 94 ajutangsha was purchased by the defendant No. 1 from defendants No.2 to 6 before the trial Court the defendants filed an application under Order 7 rule 11 read with order 17 Rule 2 of the Code of Civil Procedure for rejection of the plaint or in the alternative for hearing the law point first. The learned Subordinate Judge by the impugned order dated 27-7-1999 rejected the aforesaid application of the defendants. Being aggrieved by the order dated 27-7-1999 the defendant petitioners preferred this revisional application and obtained the present Rule.

(3.) In considering the present Rule we are to consider the previous history of this Case. The opposite parties No.1 to 40 are the plaintiffs in the instant Case namely, Title Suit No.42 of 1999. These opposite parties No.1 to 40 were also plaintiffs in Title Suit No. 92 of 1991 which was subsequently re-numbered as Title Suit No. 177 of 1994. In that suit the plaintiffs (who are present opposite parties No. 1 to 40) prayed for declaration of title in respect of Ka and Kha Schedule land and for partition. In that earlier suit the present defendant-petitioners No.2 to 7 were also defendants. With regard to Schedule Ka land in the earlier suit no dispute has arisen in the present suit. Only in respect of Kha Schedule land of the previous suit the present suit has been filed by the self same 40 plaintiffs. In the Kha Schedule of the plaint of the earlier suit the land of CS Khatian No. 4300 Ja, CS plot No. 371 was shown as 94 shatangsha and the plaintiffs claim that out of 94 shatangsha the defendants purchased only 0.0090 ajutangsha by several documents in the year 1954- 55. Since the defendants purchased a small portion of land by several documents in the year 1954-55, the defendants were made parties in the earlier suit as the plaintiffs prayed for declaration of title as well as partition. So, in the previous suit the plaintiffs claim was that the defendants purchased 0.0090 ajutangsha land but the claim of the defendants was that the defendants purchased 9400 ajutangsha that is 94 satangsha. In the earlier suit the defendants claim was that by mistake the area was written in the deed but in fact they purchased the entire suit land of CS plot No.371 in the year 1954-55 and thereafter they mutated their names and had been possessing the entire land although. The matter was investigated by the trial Court as well as by the appellate Court and it was found by the trial Court that the defendants purchased by several documents in the year 1954-55 the entire land measuring 90 shatangsha. The plaintiffs tried to prove before the Court by showing CS Khatian that the said plot contained 0.94 decimals of land but the trial Court as well as the High Court Division found that the document of the plaintiffs namely, the CS Khatian filed by the plaintiffs, was forged and fabricated. Ultimately the trial Court held that entire lands measuring 90 shatangsha of CS plot No.371 was purchased by the defendants. A portion of the land was acquired and some other portion was taken for path and ultimately. 0.8372 acre which is 83.72 shatangsha is left and this portion was first leased out to defendant No.9 and subsequently the defendants entered into an agreement with defendant No. 9 in 1989. So, the claim of the plaintiffs as well as the claim of the defendants over the present suit land was examined both by the trial Court and High Court Division in respect of area of land of CS plot No. 371 and it was found that the defendant No.9 was possessing 0.8372 acre of land by virtue of agreement from the defendants. So, the trial Court dismissed the suit of the plaintiffs holding that the plaintiffs failed to prove right, title and possession in respect of 0.8372 acre of land of CS plot No. 371 and the defendants had been able to prove their right, title and possession over the aforesaid land and the defendant Nos.1 to 8 in the previous suit purchased the entire area of CS plot No.371. Being aggrieved by the judgment and decree of the trial Court in title Suit No. 177 of 1994 the plaintiffs No. 1 to 40 preferred an appeal before the High Court Division and it was registered as First Appeal No. 230 of 1995. The High Court Division heard both the parties and considered the matter at length. In order to pr the document of the plaintiff appellants the High Court Division took pains to call for the records from the office of the Collector and after examination the record the High Court Division found that basic document i.e. CS record of rights by plaintiffs, was absolutely forged and concocted. In this connection, it may be mentioned that before trial Court an Advocate Commissioner appointed in order to measure the suit land name CS plot No.371. From the Advocate Commissioners report it appears that the Commissioner found 0.9007 acre within the boundary of the land of CS plot No. 371. So, it appears that the Advocate Commissioner found more or less 90 shatangsha of land within the boundary of CS plot No. 371. Considering the matter and perusing the record and after hearing the High Court Division by a judgment and decree dated 4-3-1998 dismissed the appeal of the plaintiff-appellants and affirmed the judgment and decree by the trial Court holding that the entire suit plot No, 371 was purchased by the defendant-respondents and they have been able to prove their right, title and possession therein.