Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 3445 of 2007

Jamila Khatun being dead her heirs:

1(a) Mst. Anwara Begum and others

......petitioners -Versus-

Asad Miah being dead his heirs:

1(a) Mohammad Ali and others

......opposite parties

No one appears for the petitioners

Mr. Md. Mubarak Hossain with

Mr. Rajib Kanti Aich, Advocates

...... for opposite parties 1 and 2

Judgment on 21.03.2024

This Rule at the instance of defendant 1 was issued calling upon opposite parties 1 and 2 to show cause as to why the judgment and decree of the Joint District Judge, Court No.1, Cumilla passed on 17.08.2006 in Title Appeal No.05 of 2005 allowing the appeal setting aside the judgment and decree of the Senior Assistant Judge, Daudkandi, Cumilla passed on 28.09.2004 in Title Suit No.97 of 1993 decreeing the suit for partition in part should not be set aside and 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 plaintiffs instituted the suit stating that Zainuddin was the CS recorded tenant of the land of CS Khatian 74, plots 133, 134 and 138. He transferred his 50% share to his wife Kadbhanu and thereafter died leaving behind a wife, 3 sons and a daughter.

Kadbhanu gifted .23 acres to her daughter Zanodi and died leaving behind a son and 3 daughters. For nonpayment of rents Kadbhanu’s land was put into auction. Sagarjan and others then took the land lease from the then Talukders and the same were recorded in their names accordingly. The remaining quantum of land measuring 1.15 acres was recorded in the names of plaintiffs and defendant 1. Zanodi sold out her share measuring .23 acres to Salamuddin by a kabala dated 10.03.1932 and handed over possession thereof. Salamuddin died leaving behind 4 sons including plaintiffs 1 and 2 and daughter defendant 1 and Foyjon. The son Kalu died leaving his mother Chandra Bhanu, a wife and plaintiff 2. Another son Younus died leaving his mother, 2 bothers and a sister. Chandra Bhanu died leaving behind 2 sons Mofizuddin and plaintiff 1 and a daughter defendant 1. Foyjon died leaving plaintiff 1 and defendant 1. Mofizuddin died leaving behind plaintiff 1 as brother and defendant 1 sister. Esah Bibi, Safar Jan and Kalar Maa sold out .98 acres to Chand Miah. Mohar Ali, Lal Mian and Kafiluddin by a registered kabala. Chand Miah sold out .30 acres to Lal Mia, Momtaz uddin alias Rahimuddin. Lal Mia died leaving behind Mohar Jan and Khorshed. Kali Bibi died leaving a son and 2 daughters. Khorshed sold .14 acres to Fazlu Miah, Abdul Baten and Abdul Khaleque. Plaintiff 1 purchased .135 acres from Montaj Uddin and Mohar Jan; .07 acres from Abdur Rashid; .11 acres from Khorshed; .04 acres from Almas; .02 acres from Ambia; .07 acres from Fazlu and .07 acres from Abdul Khaleque. Wahid Mia and Puteswari sold out .04 acres to plaintiff 2. Therefrom, plaintiff 1 sold .06 acres to plaintiff 2, plaintiff 1 further sold out .09 acres and thus the plaintiffs became the owner and possessor of .885 acres. Hence the suit for partition of land measuring 2.30 acres claiming plainttiffs’ saham to the extent of .885 acres.

Defendant 1 contested the suit stating that Zainuddin was the owner and possessor of 50% share of the aforesaid khatian. He died leaving behind a wife, 3 sons and 6 daughters. Kadbhanu gifted her share measuring .23 acres to daughter Zanodi and the latter sold out the same to Salim Uddin by a kabala dated 10.03.1932. Salim Uddin died leaving his wife Chandra Bhanu, 4 sons, Mofizuddin, Kalu, Younus and plaintiff 1 and 2 daughters defendant 1 and Foyjon Bibi. Rabiullah sold out some lands to Rahimuddin, Montaj Uddin and Asgar Ali. These defendants purchased .075 acres from Abdul Hashem and Abdul Malek; .34 acres from Lal Miah; .01 acres from Rahimuddin and .155 acres from Esha Bibi. In this way she became the owner in possession of .6485 acres. The plaintiffs have no title and share in an