IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1952 of 2011. In the matter of:

An application under section 115(1) of the Code of Civil Procedure.

And

Md. Tayeb Ali being dead his legal heirs-

1(a) Ms. Sajiron Begum and other ...Petitioners

-Versus-

Aftab Uddin being dead his legal heirs-

Md. Mazibor Rahman Babul and others

...opposite parties No one appears

...For the petitioners Mr. Zulfiqur Ahmed, Advocate

...For the opposite party Nos.1- 3.

Heard & Judgment on: 25.11.2024.

This Rule was issued calling upon the opposite party Nos.1-4 to show cause as to why the impugned judgment and decree dated 27.08.2008 passed by the learned Joint District Judge, 1st Court, Kurigram in Other Appeal No.102 of 2000 allowing the appeal and reversing those dated 29.05.2000 passed by the learned Assistant Judge, Nageswari in Other Suit No.136 of 1994 should not be set aside and/or pass such other or further

order or orders as to this Court may seem fit and proper.

Facts in short are that the petitioner as plaintiff instituted above suit for declaration of title for 1.30 acres land appertaining to plot NO.4 and 565 of S.A. khatian No.1 and further declaration that the ex-parte judgment and decree of Other Suit No.71 of 1993 dated 05.03.1994 of the court of learned Assistant Judge, Nageswari is collusive, unlawful and not binding upon the plaintiff.

It was alleged that above land belonged to jomindar Mukar Bimalendu Roy Bahadur and the nature of above land was “Bilyer Kura” or “Deep water” but subsequently above water body became cultivable and above jomindar gave settlement of above land orally to the plaintiff on receipt of Tk.200/-as salami and at an yearly rent of 12 anna on 4th Baishak 1356 BS and delivered possession. The plaintiff is in peaceful possession in above land by cultivation. But the same has been erroneously recorded in S.A. khatian No.1 in the name of the government. Defendant No.1 as plaintiff filed Other Suit No.71 of 1993 falsely claiming that above jaminder gave settlement of above land to him orally and by giving false evidence obtained an ex—parte judgment and decree on 05.03.1994.

The suit was contested by No.1 and 2 by filing by submitting two separate written statements.

Defendant No.1 alleged that disputed 1.30 acres land belonged to Kumar Bimalendu Roy Bahadur and the nature of the land was “Bilyer Kura” and the same was accordingly recorded in C.S. khatian No.4. By the passage of time above land became cultivable and above jomindar gave settlement of the same to the defendant No.1 orally on 2nd of Srabon 1357 B.S. on receipt of salami of Tk.100/- and at an yearly rent of 10 anna and delivered possession. The defendant is in possession in above land but the S.A. khatian of above land has been erroneously recorded in the name of the government and local Tahsildar refused to receive rent from the defendant. The defendant as plaintiff filed Other Class Suit No.71 of 1993 and lawfully obtained an ex-parte judgment and decree on 05.03.1993.

Defendant No.2 stated that the disputed land was a huge water body known as “Nilyer Kura” and the same never became cultivable land and above water body has been given lease by the government to the Fishermen Co-operative society for piciculture and they are in possession in above water body. The jomindar never gave settlement of above land to any person and above a ex-parte judgment and decree of Other Class Suit No.71 of 1993 was ineffective, collusive and null and void.

At trial plaintiff examined four witnesses and defendant No.1 examined three witnesses and defendant No.2 examined one witness. Documents of the plaintiff were marked as Exhibit No.1-2 and those of the defendant No.1 were marked as Exhibit No.Ka-Ummo and documents of defendant No.2 were marked as Exhibit No.A-B respectively.

On consideration of facts and