Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 381 of 2009

In the Matter of:

Memorandum of appeal from the original decree.

-and-

In the Matter of:

Mossammat Maleka Begum and others.

.....Defendant-appellants.

-Versus-

Most. Jarina Begum and others

...Plaintiff-respondents.

Mr. S.M. Obaidul Haque, Advocate

……. For the appellants. Mr. Md. Sajjad Ali Chowdhury, Advocate with Mr. Md. Fazla Rabby, Advocate

......For the respondent Nos. 1 and 2

Heard on 07.11.2024 and 14.11.2024 and Judgment on 27.11.2024.

Sheikh Abdul Awal, J:

This first appeal at the instance of the defendant-appellants is directed against the judgment and decree dated 28.10.2009 (decree signed on 02.11.2009) passed by the learned Joint District Judge, 1st. Court, Rangpur in Other Class Suit No. 10 of 2002 decreeing the suit.

Material facts of the case, briefly, are that respondents as plaintiffs filed Other Class Suit No. 10 of 2002 in the Court of learned Joint District Judge, 1st Court, Rangpur for declaration of

title and partition of .58 acre land out of 1.17 acre land as

described in the "Ka" schedule to the plaint. The plaintiff- respondents’ case in short is that Tufan Sheikh was owner in possession in 50 acre land in Plot 3374 and 0.67 acre land in Plot

3464 corresponding to CS Khatian 1060 (Exhibit- Kha) and the land in total was 1.17 acre. Tufan Sheikh died leaving behind 2 daughters named Azizon and Mofizon. Md. Asan is the husband of Azizon and he was entrusted for preparation of SA record of the land in question but he deceived Mofizon and prepared the SA record in respect of the entire suit land in the name of his wife Azizon. Mofizon, who was the mother of plaintiff No. 1, she maintained in joint possession in the suit land. In this background after the death of Mofizon her heirs being plaintiffs 1-8 having been possessed the suit land, who went to the Tahsil Office on 25.05.2000 for payment of rent but Tahsilder informed that they could not pay the rent because the SA record was prepared in the name of Azizon. Soon thereafter the plaintiffs demanded partition on 27.05.2000 but the defendants refused to do so and hence the suit for declaration of title and partition.

Defendant-appellant Nos. 2-4 entered appearance in the suit and filed written statements denying all the materials averments made in the plaint stating inter alia that the suit is not maintainable in its proper form and manner. The suit is bad for defect of parties, all properties are not brought into hotchpotch. The suit is barred by section 42 of the Specific Relief Act. The defendants’ case in brief is that Tufan Sheikh was the owner in possession over 1.17 acre land and he died leaving behind 1 son and 2 daughters Azizon and Mofizon and his son died without any issue. Mofizon as daughter of Tufan Sheikh as well as the predecessor of the plaintiffs died leaving behind 1 son Mozaffar and 1 daughter named Jorina. Mofizon died before 15.07.1961. Tufan Sheikh during his lifetime settled the suit land in favour of his only daughter Azizon on 25th Kartik 1360 B.S. and delivered possession to her and accordingly, SA Khatian 1036 was prepared. Plaintiffs have/had no title and possession in the suit

land. Upon request of the plaintiffs some local persons asked Azizon to give share to her sister and accordingly she gave eight anna shares in favour of Jorina and Mozaffor in SA Khatian 1319 (Exhibit- Kha) which covers an area of 60 acre. Azizon sold 33 decimal to defendant-1, Azizon also transferred 81 decimal of land out of 1.17 acre of land in favour of defendants 3-4 by virtue of a Heba bil Awaz document dated 29.11.1973 (Exhibit- Gha). Accordingly defendant Nos. 3-4 mutated their names and having been maintaining possession upon payment of rent, Exhibit- Uma series. Azizon also made a gift for the rest 36 decimal of land in favour of her son Aziruddin defendant