IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

And

Mr. Justice Sashanka Shekhar Sarkar

First Appeal No. 262 of 2012.

With

Civil Rule No. 784 (F) of 2012.

Monoranjan Ghosh and others

...Appellants. -Versus-

Mohammad Jashim Uddin Khan and others

....Respondents. Mr. M. Ataul Gani, Advocate

… For the appellants

Mr. Moinuddin, Advocate

… For the respondents

Heard on: 06.03.2024, 10.03.2024, 25.07.2024 and 31.07.2024.

Judgment on: 04.08.2024,

Md. Badruzzaman, J:

This Appeal is directed against judgment and decree dated 13.02.2012 (decree signed on 19.02.2012) passed by learned Joint District Judge, 2nd Court, Manikgonj in Title Suit No. 30 of 2007 decreeing the suit in preliminary form allotting a saham of 2.8375 acre land in favour of the plaintiff by allowing buy up of .7950 acre land and a saham of 1.48375 acre land in favour of defendant Nos. 40-41, appellants.

During pendency of this appeal and upon an application filed by the appellants for staying operation of the impugned judgment and decree, Rule was issued and the operation of impugned judgment and decree was stayed for period of 4 (four) months which was registered as Civil Rule No. 784 (F) of 2012.

Since common facts and law are involved in both appeal and Rule, those have been heard together and now are being disposed of by this common judgment.

Facts, in short, are that respondent No. 1 as plaintiff instituted Title Suit No. 30 of 2007 before the learned Joint District Judge, 2nd Court, Manikgonj praying for a decree of partition of total 5.3250 acre land claiming 2.0425 acre land in his saham. His positive case was that his father Hazi Ekram Ullah and mother Basirunnesa were owners in possession of total 532.90 acre land (4.4350 acre of schedule ‘Ka’ plus .89 acre of schedule ‘Kha’ to the plaint) by sale deed Nos. 4534 dated 20.11.1976, 1450 dated 01.04.1977, 36176 and 36177 dated 13.12.1997, 4828 and 4829 dated 20.12.1977, 7367 dated 27.09.1997, 25 dated 02.01.1983, 4277 dated 01.12.1977, 2397 dated 10.07.1980, 5043 dated 04.12.1978 and 1248 dated 10.03.1991 and had been owning and possessing the same. Out of total land they were living with their family members, by erecting dwelling house in .08 acre land of S.A plot No. 1819 and .29 acre land of S.A plot No. 1563. Adjacent to the dwelling house, Hazi Ekram Ulla dug pond in .7450 acre land of S.A plot No. 1564 and .20 acre land of S.A plot No. 1819 and was owning and possessing the same by the same as part of the dwelling house. They had been owning and possessing another .52 acre land as Palanbhumi (courtyard). Said ponds and courtyard are appertaining to the dwelling house. Ekram Ullah and his wife had been owning and possessing the same as a compact block. Thereafter, Basirunnessa and Ekram Ullah died leaving behind one son (the plaintiff), two daughters (defendant Nos. 1 and Khairunnessa) and then Khairunnessa died leaving behind

defendant Nos. 2-3 as her son and daughter who inherited the share of Khairunnessa. The daughters of Ekram Ullah and Basirunnessa were leaving elsewhere in their respective husband’s houses after their marriage and after death of Khairun Nessa her heirs, defendant Nos. 2 and 3, have been living in their respective houses and they never got possession of the suit property. The plaintiff has been residing in the dwelling house with his family members. The suit property had never been partitioned by metes and bounds and when dispute arose among the co-sharers, the plaintiff requested the defendants to partition the suit property. The plaintiff has eight anna share in the ejmali property and since the defendants refused to make partition, the plaintiff filed the instant suit.

Added defendant Nos. 40-41 contested the suit by filing joint written statements contending, inter alia, that Ekram Ullah was was owner in possession of the sui