Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No.4721 of 2006

Md. Abul Kashem Ali ......petitioner -Versus-

Md. Surutzzamal being dead his heirs:

1(a) Mst. Rahima Begum and others

...... opposite parties

Mr. Abul Kashem Sarker, Advocate

...... for the petitioner

Mr. SK Sharifuddin, Advocate

...... for opposite party 1

Judgment on 21.05.2024

This Rule was issued calling upon the opposite parties to show cause as to why the judgment and decree of the Additional District Judge, Kurigram passed on 05.04.2006 in Other Class Appeal No.79 of 2004 dismissing the appeal affirming the judgment and decree of the Senior Assistant Judge, Roumari, Kurigram passed on 07.09.2004 in Other Class Suit No.32 of 2003 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 plaintiff brought the suit praying for permanent injunction against the defendants in respect of the suit land as described in the schedule to the plaint. In the plaint the plaintiff claimed that his mother Mst. Nesavan Bibi took 2.66 acres of the suit land pattan from the recorded owner Bakku Barman and Ram Narayan Barman in 1355 BS. She erected a house in a part of the

suit land and used to possess the remaining part through cultivation. SA khatian was prepared wrongly in the name of defendants 2 and 3 for which his mother instituted Other Class Suit No.208 of 1984 against them and obtained an ex parte decree on 31.01.1994. Nesavan Bibi subsequently handed over the suit land to the plaintiff through a will dated 12.05.1997. The plaintiff has been owning and possessing of the same through cultivation. The defendants being armed with deadly weapons entered into suit land at about 10.00 am on 30.06.2003 to cut away irri paddy grown therein. He somehow resisted them and hence the suit for permanent injunction.

Defendant 1 contested the suit by filing written statement. In the statement he denied the facts stated in the plaint and further contended the plaintiff did not get decree in Title Suit No.208 of 1984. He used the name of Nesavan Bibi and instituted the suit which was dismissed. The suit land originally belonged to Ram Narayan who gave pattan of 1.91 acres to Asim Uddin and Khalil Uddin alias Alif Uddin. Khalil Uddin died leaving his only son Jalil Uddin alias Bullet Mahmood. RS Khatian 1132 has been prepared correctly in the names of Azim Uddin and Jalil Uddin. Jalil Uddin sold out .95 acres on 25.10.1977 to defendant 1 through a registered kabala who mutated his name and separated the jama. He paid rent to the concerned authority and Diara khatian has been prepared in his name. The defendants are in possession of the suit land. The plaintiff instituted the suit on false statement and as such it would be dismissed.

On pleadings the trial Court framed 4 issues. During trial the plaintiff examined 2 witnesses and their documents were exhibits-1 and 2. The defendants also examined 2 witnesses and their documents were produced as exhibits-Ka-Chha. However, the trial Court dismissed the suit on contest against which the plaintiff preferred appeal before the District Judge. The Additional District Judge, Kurigram heard the said appeal on transfer and dismissed it affirming the judgment and decree passed by the trial Court. In this juncture, the plaintiff approached this Court and obtained this Rule.

Mr. Abul Kashem Sarkar, learned Advocate for the petitioner taking me thorough the judgments passed by the Courts below and other materials on record submits that the Courts below did not ascertained the possession of the parties over the suit land. The plaintiff by evidence of two witnesses proved his possession in the suit land. In a suit for permanent injunction the prime consideration is the possession of the claimant in the suit land and question of title can be seen incidentally. Here, the plaintiff proved his title over the suit land by exhibiting the judgment and decree passed