Bench:

Mr. Justice Bhishmadev Chakrabortty And

Mr. Justice Md. Akhtaruzzaman

First Appeal No. 643 of 2000

Ainali Kha and others …..appellants

-Versus-

Government of Bangladesh and others

..... respondents

Mr. Abdul Hye Fakir with

Mr. Md. Towhidul Islam, Advocates

…..for appellants

Ms. Rahima Khatun, Deputy Attorney General with Ms. Farida Pervin Flora and Mr. Md. Ruhul Amin, Assistant Attorney Generals

..... for respondent No.4

Heard on 02.11.2023, 21.11.2023, 27.11.2023 and 09.01.2024

Judgment on 16.01.2024.

Md. Akhtaruzzaman, J.

The plaintiffs have preferred this appeal under section 96 of the Code of Civil Procedure (in short, the Code) challenging the judgment and decree dated 31.08.1999 passed by the learned Subordinate Judge, Court No. 2, Barishal in Title Suit No. 23 of 1996 dismissing the suit on contest.

Facts relevant for disposal of the present appeal, in brief, are that the present appellants being plaintiffs filed Title Suit No. 23 of 1996 before the Subordinate Judge, Court No. 2, Barishal praying for declaration of title over the suit land duly described in the schedule of the plaint contending, inter alia, that Titu Kha was the owner of 8 annas share in C.S. Khatian Nos. 113/114/116/117 and 119 of Mouza Mahisha Paguria under Mehendigonj police station whereas Ayub Ali

and Shamsuddin had their 4 annas shares each. Khatian No. 315 was entirely prepared in the name of Titu Kha. In C.S. Khatian No. 115 he was a sharer of 8 annas. Titu Kha died leaving behind his son Kali Kha. Kali Kha died leaving behind 2 (two) sons, named, Ainali Kha and Chandu Kha (plaintiff Nos. 1/2) and wife Fatema Bibi. Fatema Bibi died leaving behind her 2 (two) sons mentioned above. Ayub Ali died leaving behind 1 (one) son Kurman Kha who subsequently died leaving behind Ingul Kha and Azahar Kha. Thereafter, Ingul Kha died leaving behind 1 (one) son Sattar Kha (plaintiff No. 3). Azahar Kha died leaving behind 3 (three) sons, named, Mrit Ali, Shahjahan Kha (plaintiff No. 4), Abdul Malek Kha (plaintiff No. 5) and daughter Renu Bibi (plaintiff No. 6). Ali Kha died leaving behind 1 (one) son Abdul Jabbar who subsequently died leaving behind 1 (one) son Ratan Kha (plaintiff No. 7) and 1 (one) daughter Rizia Khatun (plaintiff No. 8). After the demise of Shamsuddin his son Hasu Kha inherited him. Hasu Kha died leaving behind 3 (three) sons, named, Fotu Kha (plaintiff No. 9), Rajek Kha (plaintiff No. 10), Khalek Kha (plaintiff No. 11) and a daughter Saleha Begum. Abdul Karim Kha of C.S. Khatian No. 115 died leaving behind his son Hamed Ali Kha who subsequently died leaving behind his daughter Zarina (plaintiff No. 13). In this way the plaintiffs became the owner of the suit land and have been possessing the entire 23.30 acres of land upon cultivating crops therein. But the S.A. khatian of the suit land was erroneously prepared in the name of Kedareswar and others against which they

filed Title Suit No. 302 of 1983 before the Munsif, 1st Court, Barishal which was decreed ex parte on 12.07.1986. The plaintiffs had tried to correct the wrong record of right on the basis of the ex parte decree but defendant Nos. 117-119 denied to do the same. Defendant Nos. 117-119 intentionally claimed that the disputed land is the sekosti (diluvion) land of the government. The defendants have no title and possession in the suit land. On 30.06.1996 corresponding to 16th Ashar 1403 B.S. the plaintiffs for the first time came to know about the diara settlement prepared in the name of the defendant Nos. 117- 119 which date the Tahsildar denied to accept the tax of the land which gave rise to institute the instant suit.

Defendant No. 119 contested the suit by filling a written statement denying all material allegations made in the plaint and contended that the suit is barred by limitation; bad for defect of parties; barred by res judicata and also barred under section 42 of the Specific Relief Act. The further case of the contesting defendant is that 10.32 acres