Decided on March 09,2009

Sohrab Ali Molla (Md) Appellant
Md. Ataur Rahman Talukder Respondents


M.M.RUHUL AMIN,CJ. - (1.) This petition for leave to appeal is directed against the judgment and order 13th March, 2007 passed by the High Court Division in Civil Revision No. 3460 of 2001 discharging the Rule.
(2.) Short facts as placed before the High Court Division are that the plaintiff instituted Title Suit No.72 of 1991 in the Court of learned Senior Assistant Judge, Sirajganj praying for declaration of title and for partition and also for permanent injunction restraining the defendant Nos.1 and 2 from transferring the suit land contending, inter alia, that the suit land belonged to Munju Sundari, Shashanka Mohan Saha Chowdhury and others and Krishna Mohan Saha Schedule 'Ka' land was purchased by Serajul Huq and Azizul Huq alias Tafazal Haque and Sardar Ali. They constructed some structures covering 4 plots of land under partition. Thereafter, there took place amicable partition among them. As per that amicable partition 1/3rd share of structures (shop) was obtained by Serajul Huq, 1/3 rd portion from the middle was allotted to the saham of the defendant No. 5 Sadar Ali and Azizul Huq got the rest from the southern part. Thereafter, Serajul Huq sold his share by a Kabala deed dated 27-2-1967 in favour of the defendant Nos. 1-4. The defendant No. 1 is the husband and the defendant No. 2 is the wife of the defendant No.1, the defendant Nos. 3 and 4 are the full brothers of the defendant No.1. The defendant Nos. 3 and 4 sold their share measuring an area of 0.0150 acres of land including 1/6th portions of the shop by a kabala deed dated 17-9-1990 in favour of the plaintiff who demanded partition and that was refused. Hence, was the suit.
(3.) The defendant No.1 contested the suit by filing written statement denying the materials made in the plaint contending, inter alia, that the defendant Nos. 3 and 4 were his benamder and he was the real owner. It was his further case that as benami was not proved, he was entitled to get back the transferred land under section 4 of the Partition Act.;

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