Present:

Mr. Justice A.K.M. Asaduzzaman

Civil Revision No.2557 of 2010

Md. Kutubuddin Bhuiyan being dead his heirs Rabiul Islam Bhuiyan and others.

……………Petitioners.

-Versus-

Shakhina Bibi and others

………….Opposite parties.

Mr. Shaheed Alam, Advocate

……….For the petitioners.

Mr. M. Belayet Hossain, Advocate.

.........For the Opposite parties.

Heard and Judgment on 16.05.2024. A.K.M.Asaduzzaman,J.

This rule was issued calling upon the Opposite Parties to

show cause as to why the judgment and decree dated 01.12.2009 passed by the Joint District Judge, 3rd Court, Dhaka in Title Appeal No. 157 of 1998 affirming those dated 30.04.1998 passed by the Assistant Judge, 3rd Additional Court, Dhaka in Title Suit No. 221 of 1997 dismissing the suit should not be set aside.

Petitioner Nos. 8-10 and one Kutubuddin Bhuiyan predecessor of the petitioner Nos. 1-7 as plaintiff filed Title Suit No. 221 of 1997 against the opposite parties for cancellation of auction sale dated 26.09.1995 and for a declaration that the judgment passed in Title Suit No. 5 of 1959 is not binding upon the plaintiffs.

Plaint case in short, inter alia, is that suit property was belonged to Radha Charon Saha, who died leaving behind two sons Gobindo Charan Naha and Prasanna Kumar Naha became the owner of the suit property and possessing the suit property in equal share each. Gobindo Charan Naha sold his 08 annas share to the plaintiff on 15.05.1943 and Prasonna Kumar Naha gave his 08 annas share pattan to the plaintiff in the year 1944. In 1945 one Monsur Ali took pattan on the suit land from the plaintiffs and S.A. khatian was prepared in the name of the plaintiffs and the said Monsur Ali. Suit land was acquired in L.A. Case No. 48 of 2003 and compensation was given to the sons of Monsur Ali.

Plaintiff’s further case is that land of Taluk 12184 was sold for rent sale in 25.09.1945 from Gobindo Charan Naha and Prosanna Kumar Naha. Chand Mia purchased the said property in auction but could not get in possession thereon. Prasanna Kumar Naha thereafter transferred the same to Mawla Baks, predecessor of the defendants. In a said rent suit, plaintiffs were need not made parties although they were the owner and possessor of the suit land and as such plaintiff’s title has not been affected by the said auction. The said Mawla Baks, predecessors of the said defendants filed Title Suit No. 05 of 1959 for declaration of title and recovery of khas possession, wherein plaintiffs were made parties as heirs of Abdus Sobhan Bhuiyan. In the said suit, it was alleged that present plaintiffs trespass the suit through by his father Abdus Sobhan Bhuiyan although they have no title in the suit land. In that suit plaintiff filed a written statement and contended that they are not trespasser and they are possessing the suit land by way of purchase in the year 1943. In that suit plaintiff did not claim their interest and affected by the rent sale as well as there is no such issue as such since the said issue was settled earlier in the institution of suit, plaintiff filed the suit for declaration that the auction sale dated 25.09.1945 and the decree in Title Suit No. 05 of 1959 are not binding upon the plaintiffs and the order passed in

Opposite Party as defendants contested the suit by filing written statement, denying the plaint case, stating, inter-alia that suit is barred by limitation as well as barred by res judicata and their further case is that Radha Charon is the original owner. After his death two sons Gobindo Charan Naha and Prosanna Kumar Naha became the owner in the suit property in equal share. They failed to pay the rent and property was put to an auction on 25.09.1945 in the Rent Suit and one Chand Mia purchased the said suit land on auction, who sold the property to Prosanna Kumar Naha on 23.04.1946, who thereafter gave permanent lease to Mawla Baks on 08.03.1949. Said Mawla Baks was dispossessed from the suit land by Monsur Ali and Abdus Sobhan, predecessor of