JAMIRA KHATUN Vs. MD. FAZLUL KARIM

JUDGEMENT

(1.) This Petition for leave to Appeal at the instance of the petitioners is directed against the judgment and order dated 08.02.2006 passed by the High Court Division in Civil Revision No.3975 of 2001 making the Rule absolute setting aside the judgment and decree dated 17.07.2000 passed by the Additional District Judge and Anti Smuggling Tribunal, Sylhet in Title Appeal No.312 of 1999 affirming those dated 19.10.1999 passed by the Senior Assistant Judge, Additional Court, Sadar, Sylhet in Title Suit No. 50 of 1997 dismissing the suit.

(2.) The short facts of the case are that the plaintiffs instituted Title Suit No. 216 of 1985 in the First Court of Munsif, Sylhet Sadar, Sylhet impleading the respondent No.1 as principal defendant and the other respondents as proforma defendants for a declaration of their right, title and possession jointly with the proforma defendants in the suit land and also for a declaration that the judgment passed in Miscellaneous Case No.132 of 1969 of the same court is collusive, illegal, inoperative and liable to be set aside. The suit was subsequently transferred to the Additional Court of Senior Assistant Judge, Sylhet Sadar and renumbered as Title Suit No.50 of 1997. In the plaint the Suit land was described as District-Sylhet, Thana-Sadar, Mouza-Godnorail, Plot No.1859 S.A. Khatian No.192/13 appertains to Dag Number 116 of Abdul Taluk Number 1102/30 measuring about 14 acres equivalent to 1/2 Kedar and meets and bounded by, in the east the public path and thereafter the residence of the plaintiffs, in the West the residence of defendant No.1, in the North the passage of the defendant No.1 and thereafter Samad and others, in the South the kitchen garden (bichrachara) of the plaintiffs and the suit land is the family graveyard of the plaintiffs as well as of the proforma defendants.

(3.) The defendant No.1, Nazibullah contested the suit by filing written statement denying the claims of the plaintiffs stating, inter alia, that the suit land along with other lands belonged to Taluk No.1079 Bakor Mohomad and Niskor benombary (numberless) Taluk Niamat Ali Shah and Liakat Ali Shah and the disputed land was not past of Taluk No.1102/30 Abdul Taluk; that without local investigation the plaintiffs are not entitled to get any relief; that the plaintiffs, the proforma defendants or their predecessor have/had no right title and possession in the suit land, the plaintiffs and the proforma defendants in collusion with each other instituted the suit, that the Kabala in the name or the wife Abdul Khalid dated 12th Baishakh 1326 B.S. as it mentioned in the plaint do not attract the suit land. Moreover, since the plaintiffs and the proforma defendants had got no right, title and possession over the suit land and the suit is not at all maintainable in its present form inasmuch as the suit land belonged to Abdul Monaf in his Maliki right under his khas possession and while the said Abdul Manaf owned and possessed the land in Maliki right by executing a kabaliyat dated 04.04.1948 they took settlement of 3 kadar 3 powa land from the said Abdul Monaf with a rent of TK.16.00 per year and thereafter by taking possession of the suit land has been enjoying and possessing the same by using it as his family graveyard, as well as in some part of the suit land he has been growing bamboos and trees; that his son, one daughter and one nephew were buried in the said graveyard, but the plaintiffs or their predecessor did never possess the suit land; that though he has been possessing the suit land in the last settlement survey it was recorded in the name of his landlord Abdul Monaf and as such for correction of record he filed Miscellaneous Case No. 139 of 1969 in the First Court of Munsif, Sylhet Sadar under Section 143 of the State Acquisition and Tenancy Act which was decreed in his favour and accordingly the record was corrected and the judgment passed in that suit can not be declared as set aside since the plaintiffs were aware of the judgment of the case dated 05.08.1970, moreover, the suit is barred by limitation; that subsequently by two amendment petitions the said Nazibullah amended his written statement twice, by the first amendment the quantum of his alleged settlement with him by Abdul Monaf was increased up to 4 kedar 2 powa, and by the second one the statement regarding burial the family members of the plaintiff with his permission in the suit land had been struck off. After hearing, the Assistant Judge by his judgment and decree dated 19.10. 1999 dismissed the suit with the finding that the suit though is maintainable but barred by limitation with the finding that the suit land belonging to Abdul Taluk as reported by the Advocate Commissioner's report is not reliable, and the defendant has been enjoying and possessing the suit land. On appeal the said judgment was affirmed by the appellate Court by the impugned judgment and decree dated 17.07.2000 agreeing with the findings of the Trial Court.