Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 939 of 2005

Md. Zahangir Mollah .....petitioner -Versus-

Md. Azizul Jalal and others

......opposite parties

Mr. Shasti Sarkar with

Mr. FM Mizanur Rahman, Advocates

...... for the petitioner

Mr. Ahmed Nowshed Jamil with H.M. Borhan, Advocates

...... for opposite party 1

Judgment on 09.05.2024

In this Rule, issued at the instance of plaintiff, defendant opposite party 1 was called upon to show as to why the judgment and decree of the Joint District Judge, Court No.3, Khulna passed on 15.02.2005 in Title Appeal No.337 of 2000 allowing the appeal reversing those of the Senior Assistant Judge, Koyra, Khulna passed on 29.08.2000 in Title Suit No.58 of 1996 decreeing the suit should not be set aside and/or such other or further order or orders passed to this court may seem fit and proper.

Facts relevant for disposal of the Rule, in brief, are that the petitioner as plaintiff instituted the suit stating facts that Madhab Sarder, Jadab Sarder, Bhuban Sarder, Kalicharan Sarder and Kalipada Sarder were the recorded tenants of the land measuring an area of 7.21 acres. They got 1.44 acres each in the suit khatian. Madhab sold out his share measuring 1.44 acres to Yer Ali

Mollah, father of the plaintiff through kabala dated 17.06.1970 and handed over possession thereof. Naren son of Bhuban also sold out his share measuring 1.43 acres to plaintiff’s father on 30.05.1970 through another kabala. In this way the plaintiff’s father became owner in possession of 2.87 acres in the suit khatian. Therefrom, he sold out .66 acres to Moslem and .165 acres to defendant 19. After sale of total .825 acres he had 2.045 acres of land. Yer Ali died leaving behind his 2(two) sons plaintiff 1 and defendant 16, his wife defendant 17 and daughter defendant 18 as heirs and they are in possession of the aforesaid quantum of land. The plaintiff’s father was an inhabitant of India. Madhab and Naren purchased his property situated in India and they started residing therein. Subsequently Madhab died there. The defendant disclosed on 12.08.1993 that he obtained a compromise decree in Title Suit No.266 of 1973 and claimed the suit land. Defendant 1 was a minor and his father representing him instituted the aforesaid suit. The patta as mentioned in that suit was returned to Madhab the original owner of the land. The father of defendant 1 grabbed the said patta and fraudulently obtained the compromise decree against defendants 1-4 and ex parte against the rests. The plaintiff was not a party to the suit and no notice was served upon him. Hence, the suit for declaration that the decree passed in the aforesaid suit was collusive and not binding upon the plaintiff.

Defendant 1 contested the suit denying the statements made in the plaint. He admitted that Madhab, Jadab, Bhuban, Kalicharan and Kalipada each got 1.43 acres of land in the suit khatian. Madhab from his share settled .99 acres to Banshiram on 19.06.1951 through a registered patta. Subsequently, Banshiram sold the same to Abbas Gazi who purchased it in the name of his minor son Azizul Jalal, defendant 1 through a kabala dated 21.03.1973. Sufia Khatun, mother of Azizul Jalal as guardian instituted Title Suit No. 266 of 1973 in the Court of the then Munsif, Court No.3, Khulna for declaration of title because record was erroneously prepared in the name of Madhab and others. In the said suit Madhab and Banshiram were made parties. The suit was decreed on compromise on 12.05.1975 with defendants 1-4. During liberation war the original patta with other documents were lost. Defendant 1 has been possessing the aforesaid .99 acres of land by mutual partition. The plaintiff has no title and possession in the suit land. The suit for mere declaration that the decree is not binding upon him without any prayer for declaration of title and recovery of possession is not maintainable, and as such it would be dismissed.

On pleadings, the trial Court framed 06(six