Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 3044 of 2005

Md. A Barek ..... petitioner -Versus-

Md. Chan Miah and others

..... opposite parties

Mr. Md. Abdul Barek Chowdhury with

Mr. Nowaj Sharif, Advocates

..... for the petitioner

Mr. Abdul Hai Sarkar, Advocate

..... for the opposite parties 3-6,8-13

Judgment on 20.05.2024

At the instance of defendant 22 this rule was issued calling upon the plaintiff-opposite parties to show cause as to why the judgment and decree of the Joint District Judge, Court No. 1, Pirojpur passed on 11.01.2005 in Title Appeal No. 102 of 1999 allowing the appeal reversing the judgment and decree of the Assistant Judge, Mathbaria, Pirojpur passed on 21.07.1999 in Title Suit No. 190 of 1994 dismissing 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.

The plaint case, in brief, is that Nazar Ali Khalifa and others were the karsh tenant under Tamizuddin Mridha through a amalnama. Nazar Ali died leaving behind his wife Zarina Khatun, sons Abdul Mazid, Abdus Sattar and Abdul Aziz and a daughter Nurnnessa as heirs. The above heirs became the owners and

possessors of the land of plot 1474. Subsequently Abdul Mazid and Abdus Sattar died leaving his brother Abdul Aziz, mother Zarina Khatun and sister Nurunnessa. After Nurunnessa’s death Zarina Khatun and Abdul Aziz became the owner in possession of the plot. During their possession and enjoyment they transferred.13 acres to plaintiff 1 Mofizuddin through a registered patta dated 29.06.1949 and handed over possession thereof. The lands of CS plot 1474 was recorded in RS khatian 560 plot 497. Plaintiff Mafizuddin thus became owner and possessor of the land described in schedule ‘Kha’ to the plaint and started possessing the same by paying rents to the concerned. Plaintiff 1 then transferred .12 acres to plaintiff 2 Chan Miah through a registered heba-bil-awaz dated 21.06.1989 and handed over its possession. Although the plaintiffs had been in possession of the aforesaid land but SA khatian 243 was prepared in the names of 3 sons and a daughter of late Nazar Ali erroneously. Plaintiff 1 went to the tahashil office to pay rent in respect of the suit land but the office refused to accept rent because of the record of right was prepared in the name of previous owner. The plaintiffs then requested defendant 1 to correct the record of rights but he refused to do so. He then came to learn that erroneously RS plot 385 has been written in place of 497 in the patta. The cause of action of filing the suit arose on 15.08.1994 hence the suit for declaration of title and confirmation possession in the suit land as detailed in schedule ‘Kha’ to the plaint.

Added defendant 22 contested the suit by filing written statement. In the written statement he contended that according to the share the names of Ente Ali, Bashiruddin, Hatem Ali, Abdul Ali, Hukum Ali, Suryaban, Abdul Mazid, Abdul Aziz, Abdus Sattar, Nurunnessa, Bakful Bibi and others RS khatian 560 plots 497, 533, 534, 337, 535, 536 and 418 measuring an area of total 2.79 acres was prepared. During their possession and enjoyment Abdus Sattar and Abdul Mazid died unmarried leaving no issue and consequently Abdul Aziz and Nurunnessa inherited their shares. SA record was correctly prepared in their names. Nurunnessa died leaving his daughter Kadbanu and brother Abdul Aziz and they inherited her share as par law. Kadbanu sold out .11 acres from SA khatian 243 plots 497 and 498 to Abdul Barek (petitioner herein) and Zakir Hossain through a registered kabala dated 18.06.1974 and handed over possession thereof. Abdul Aziz during his possession and enjoyment sold out his share of .23 acres from the aforesaid two plots to Abdul Barek and Abdul Zamal through a registered kabala dated 11.06.1989. Although in the said kabalas .34 acres of land was included but actually.23 acres was transferred and the defendant has been possessing that quan