IN THE SUPREME COURT OF BANDLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

And

Mr. Justice Sashanka Shekhar Sarkar

First Appeal No. 11 of 2017

Md. Zulhas Chowdhury alias Pagla Miah and others ………… Defendant-Appellants.

-Versus-

Md. Zahedul Hossain and others

……..Plaintiff- Respondents

Mr. A. J. Mohammad Ali, Senior Advocate with Mr. Golam Mohammad Bhuiyan, Advocate

… For the Appellants

Mr. Mohammad Kamal Hossain with

Mr. Md. Fazlul Karim Chowdhury, Advocates

… For respondents

Heard on: 18.01.2024, 25.01.2024, 30.01.2024

31.01.2024 and 01.02.2024

Judgment on: 07.02.2024.

Sashanka Shekhar Sarkar, J:

This appeal, at the instance of the defendant Nos. 1-6

is directed against the judgment and decree dated 14.11.2016 (decreed signed on 17.11.2016) passed by the learned Joint District Judge, 1st Court, Narayangonj in Title Suit No. 181 of 2011 decreeing the suit.

The facts, relevant for disposal of this appeal in short is that, 89 decimals of land where into, 30 decimals of C.S. Plot No. 214, 26 decimals of C.S. Plot No. 215 and 30 decimals of C.S. Plot No. 216 appertaining to C.S. Khatian No. 59 was belonged to Kabil Sukum, Madari Sukum and Kadir Sukum. On the death of above owners, their successive heirs obtained the said properties. During S.A. operation S.A. Plot No. 303 was prepared consisting 73 decimals of land taking out from 89 decimals land of the said C.S. Plot Nos. 214, 215 and 216. A successive heir Amena Begum by a family amicable settlement got the said 73 decimals of land. On the death of Amena Begum her heirs namely Hayder Ali, Moksed Ali and Waz Ali inherited the properties and during Revisional Survey (R.S.) the said 73 decimals of land of S.A. Plot No. 303 was recorded in their names in R.S. Khatian No. 212 and R.S. Plot No. 296.

The Defendant No. 8-51, the heirs of Amena Begum transferred 45 decimals of land to the defendant No. 7 and also transferred 28 decimals of land to the plaintiffs vide a

kabala dated 17.12.2009. Accordingly the entire 73 decimals land of S.A. Plot No. 303 and S.A. Khatian No. 43 was exhausted by way of transfer to the plaintiffs and defendant No. 7. The plaintiffs having purchased the said land mutated their names in the Revenue Office. Though in the schedule of the deed dated 17.12.2009, the land purchased by the plaintiffs was mentioned as the land of Northern side but upon an amicable settlement with defendant No. 7, they got possession from the Southern side of the plot because the defendant No. 7 got possession earlier in the Northern side of Plot No. 303. The plaintiffs having purchased the suit land, erected two storied pucca building and during owning and possessing the defendant No. 1-6 made a plan to dispossess them from the suit land then the plaintiffs initiated a proceedings under section 145 of the Code of Criminal Procedure before the Executive Magistrate. On which surveyor inquired and made a report that the defendant No. 7 is in possession of the Northern Side and the plaintiff are in possession of the southern side of S.A. Plot No. 303. However, as an undue proposal of the surveyor to the plaintiffs for pecuniary benefit was denied, he submitted a report that there was no tin shed building on the suit land. The defendant by taking the advantage of said report dispossessed the plaintiffs from the suit land using local muscles against which the plaintiffs made a complaint to the local elites who took primary steps to resolve the problems but failed and then, the plaintiffs filed the suit for declaration of title and recovery of khas possession.

The defendant No. 1-6, contested the suit by filing a joint written statements denying all the material averments of the plaint and contending inter alia that the disputed land along with other lands belonged to Kabil Sukum, Madari Sukum and Kadir Sukum. On their death, their successive heirs got their respective shares and on a family amicable settlement Amena Begum got 89 dec