IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1226 OF 2022

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Nogendra Debnath being dead his heirs: Manik Debnath and others

... Petitioners

-Versus-

Sree Jitendra Debnath and others

... Opposite parties

Mr. Mohi Uddin Ahmed, Advocate

.... For the petitioners.

Mr. Shasti Sarker with

Mr. Kamal Hossain Talukder, Advocates

…. For the opposite party Nos.1-4. Heard and Judgment on 19.11.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 24.11.2021 passed by the learned Joint District Judge, 2nd Court, Netrakona in Other Appeal No.196 of 2020 affirming the judgment and decree dated 28.09.2020 passed by the learned Assistant Judge, Khaliajuri, Netrakona, in Other Suit No.51 of 2018 should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

Facts in short are that the petitioners as plaintiffs instituted above suit for declaration of title for 5 decimal land and recovery of khas

possession for 5 decimal land out of above 15 decimal respectively appertaining to plot No.572.

It was alleged that 94 decimal land including above disputed land belonged to Horendra Chandra Das and others who transferred the

same to the predecessor of the plaintiffs namely Nogendra Chandra Debnath and predecessor of defendant No.1-3 namely Jogendra Chandra Debnath and defendant No.4 three brothers by registered

kabala deed dated 11.08.1969 and they were in possession in above land

by amicable partition. Plaintiff’s father died leaving the plaintiffs as his

heirs who were in possession in the disputed land but the defendants

have fraudulently prepared B.S. Khatian of the above land in their

names and on the basis of the same denied title of the plaintiffs and

during pendency of this suit forcibly dispossessed the plaintiffs from 5

decimal land of schedule No.2.

Defendant Nos.1 and 3-4 contested the suit by filing a joint

written statement alleging that predecessor of the plaintiffs and defendant Nos.1-3 and defendant No.4 were three brothers and they jointly purchased 94 decimal land from Jogendra Chandra Debnath and Horendra Chandra Das and others by registered kabala deed dated 11.08.1969. By above amicable partition disputed land was allotted in the share of the defendants and they are

in peaceful possession in the same and BRS Khatian has been rightly

prepared in their names and the defendants did not dispossess the plaintiffs from 5 decimal land.

At trial plaintiffs examined 3 witnesses and defendants examined 4. Documents produced and proved by the plaintiffs were marked as Exhibit Nos.1-3 and those of the defendants were marked as Exhibit Nos.”Ka” – “Gha”.

On consideration of the facts and circumstances of the case and evidence on record the learned Assistant Judge decreed the suit.

Being aggrieved by and dissatisfied with above judgment and decree defendants preferred Other Class Appeal No.196 of 2020 to the District Judge, Netrokona which was heard by the learned Joint District Judge, 2nd Court who dismissed the appeal and affirmed the judgment and decree of the trial Court.

Being aggrieved by and dissatisfied with the above judgment and decree of the Court of Appeal below above appellants as petitioners moved to this Court and obtained this Rule.

Mr. Mohi Uddin Ahmed, learned Advocate for the petitioners submits that it has been admitted by the plaintiffs both in their plaint and evidence of PW1 Jitendra Deb Nath that 94 decimal land including disputed 15 decimal land was purchased jointly by the father of the plaintiffs and the defendants and they were in possession in above land by amicable partition. Since plaintiffs and defendants are admittedly co-s