Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 4631 of 2001

Eraton Bibi being dead her heirs:

1(a) Md. Nazmul Islam Mridha and others

.....petitioners -Versus-

Mazibar Rahman Talukder being dead his heirs: 1(a) Shahanara Begum and others

......opposite parties

Ms. Chowdhury Nasima, Advocate

...... for the petitioners

Mr. Kamruzzaman Bhuiyan with

Mr. Md. Moniruzzaman, Advocates

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

Judgment on 06.05.2024

At the instance of the plaintiff this Rule was issued calling upon defendant-opposite parties 1 and 2 to show cause as to why the judgment and decree of the then Subordinate Judge, Court No.1, Patuakhali passed on 25.07.2001 in Title Appeal No.166 of 1999 allowing the appeal reversing the judgment and decree of the Assistant Judge, Kalapara, Patuakhali passed on 27.07.1999 in Title Suit No.29 of 1994 decreeing 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 plaint case, in brief, is that Amzad Hossain Talukder was the recorded tenant of RS khatian 106 comprising 6 plots measuring an area of 8.93 acres. During his possession and enjoyment he transferred it to his sister Eraton Bibi (the plaintiff)

through a registered patta dated 05.08.1952 fixing salami at Taka 500.00 and annual rent of Taka 33.00. Eraton Bibi took pattan 15 annas share in her name and 1 anna in the name of Mominuddin Gazi in banami. She remained in possession by paying rents firstly through her brother Amzad Hossain Talukder and subsequently her nephew defendant 1. SA khatian 486 was accordingly prepared in the names of Eraton Bibi and Mohiuddin Gazi showing their respective shares to the extent of 15 annas and 1 anna. She had another sister named Aysha Khatun who acquired land through another deed. Her father Kazi Abul Kashem Talukder made a waqf deed in respect of huge property on 05.05.1939. In 1992 plaintiff’s son went to the tahshil office for payment of rent and came to learn that the suit land recorded in her name in SA khatian 486 has been mutated in the name of her father Abul Kashem Talukder and nephew Mojibur Rahman through Miscellaneous Case No.89-K/65-66. The plaintiff then filed Miscellaneous Case No.3-K/92-93 before the Assistant Commissioner Land, Kalapara for correction of the record of rights. In the said miscellaneous case defendant 1 Mojibur Rahman filed objection and claimed that the land of SA khatian 486 was put into auction in Certificate Case No.5356-K/62-63 for arrear of rent and her father Abul Kashem Talukder and nephew Mojibur Rahman purchased it in auction on 01.02.1964 at Taka 225.00. Subsequently the defendants mutated their names on 10.05.1966 through the aforesaid miscellaneous case. The Assistant Commissioner Land rejected the plaintiff’s miscellaneous case with the finding that the dispute between the parties need to be resolved through civil Court. It is further stated that no rent of the suit land was unpaid and no certificate case was filed for it; that no notice as required under Sections 7 and 46 of the Public Demands Recovery Act, 1913 (the Act, 1913) was served upon the plaintiff; that no notice of auction and delivery of possession was served upon her and possession of the land was never handed over to the auction purchasers; that no price of auction was deposited in the Government exchequer. The boinama and writ of delivery of possession are created. After performing the holy hajj plaintiff’s father did never deal with any property and her nephew was a child of 3-4 years at the time of so-called auction. The claimed auction, therefore, cannot be believed. In order to grab the plaintiff’s property the defendants used a non existing certificate case and mutated their names. On search the plaintiff failed to find out the existence of the certificate case, therefore, the instant suit for declaration that proceedings of the certificate case described in schedule-‘Ka’ in respect of the pr