Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No.867 of 2017

Md. Harun Mridha and others

......petitioners -Versus-

Md. Ali Kha and others

......opposite parties

Mr. Mohammad Eunus, Advocate

...... for the petitioners

Mr. Abdul Barek Chowdhury with

Mr. Nawaj Sharif, Advocates

...... for opposite parties 1-6

Judgment on 04.08.2024

This Rule at the instance of the defendants was issued calling upon the plaintiffs to show cause as to why the judgment and decree of the Special District Judge, Barishal passed on 23.10.2016 in Title Appeal No.19 of 2016 dismissing the same affirming the judgment and decree of the Senior Assistant Judge, Sadar, Barishal passed on 29.11.2015 in Title Suit No.105 of 2008 decreeing the suit for partition should not be set aside and/or such other or further order or orders passed to this Court seem fit and proper.

The plaint case, in brief, is that 18.92 acres of land was recorded correctly in the name of Maheruddin alias Mafizuddin to the extent of 8 annas and Saferuddin and Aminuddin to 4 annas each. Mafizuddin thus got 9.46 acres in his share. He had two wives Barujan and Hamidunnessa. Through registered haba dated

18.03.1920 he handed over his 14 annas share to Barujan and 2 annas to Hamidunnessa. Hamidunnessa died leaving behind Mafizuddin as heir. In the life time of Mafizuddin his two daughters and wife Hamidunnessa died and as such they did not inherit his land. His wife Barujan became the sole heir of his total land. After Barujan’s death her two brothers Ayzaddin and Reazuddin inherited the property left by her. Ayzaddin and Reazuddin remained in possession and sold out 6.95 acres to Mahabbat Ali Kha through a kabala dated 24.01.1925 and handed over possession thereof. Mahabbat Ali Kha sold out 1.93 acres to Kasem Ali Mridha, the predecessor of the contesting defendants through a kabala dated 16.03.1925 . In RS operation record has been prepared in the name of Kashem Ali to the extent of 10 annas share instead of 6 annas. Mahabbat Ali remained owner in possession of 3.42 acres and died leaving behind his 3(three) sons and 3(three) daughters, plaintiffs herein. RS khatian 106 has been prepared in the name of the plaintiffs for 1.31 acres and for Kashem Ali to the extent of 2.92 acres. The plaintiffs have been enjoying the suit land measuring 3.32 acres but the defendants refused to partition the suit land lastly on 05.05.2008, hence the suit for partition claiming saham to the extent of 3.32 acres.

Defendants 1(Ka)-1(Cha) and 2-14 contested the suit by filing written statement denying the averments made in the plaint. They further contended that Mafizuddin had 2(two) wives. His first wife Barujan had a son namely Abdus Salam and daughter Kulsum. His second wife Hamidunnessa had a daughter named Noor Bhanu. Mafizuddin gifted his total share to his 2(two) wives Barujan to the extent of 14 annas and Hamidun Nessa of 2 annas. On his death his two wives Barujan, Hamidunnessa, son Salam and two daughters Kulsum and Noor Bhanu became heirs. Barujan died leaving his only son Salam and daughter Kulsum as heirs. Subsequently, Salam died leaving behind no issues and consequently his sister Kulsum got his share. On the death of Hamidunnessa her only daughter Noor Bhanu became her heir. She died unmarried and as such her sister Kulsum and 2(two) maternal uncles Ayzaddin and Reazuddin became his heirs. Thus Kulsum got 10 annas and Ayzaddin and Riazuddin got 6 annas share in the suit land. Ayzaddin and Reazuddin sold out their shares to Mahabbat Ali through a kabala dated 24.01.1925. Subsequently Mahabbat Ali sold his share to Kashem the son of Kulsum Bibi and handed over possession thereof. On the death of Kulsum, Kashem became heir and thus he got 8 annas share by way of purchase and inheritance. Defendants 1-14 are the heirs of Kashem Mridha. They are owners in possession of 8 annas