Decided on February 02,2009

Md. Abdul Jabbar Sarder Appellant
Assistant Custodian, Enemy Property, Pabna Respondents


M.M.RUHUL AMIN,J. - (1.) This petition for leave to appeal is directed against the judgment and order dated 15th May, 2006 passed by the High Court Division in Civil Revision No.1241 of 1990 discharging the Rule.
(2.) Short facts as placed before the High Court Division are that the plaintiff instituted Other Class Suit No.121 of 1974 in the Court of Subordinate Judge (now Joint District Judge), Pabna stating, inter alia, that the suit land appertaining to C.S. Khatian No.133/2 of Mouza Bhatpara under police station Sujanagar, District Pabna originally belonged to Mathura Nath Brahmo and Satish Chandra Brahmo in equal shares. Mathura Nath Brahmo gifted his share to Jogendra Nath Brahmo, Nagendra Nath Brahmo and Kedar Nath Brahmo Sons of Jadav Chandra Brahmo by a registered deed of gift dated 24th Agrahayan, 1330 B.S. Satish Chandra Brahmo sold his share to one Jaladhar by a registered deed dated 1.2.1931. Jaladhar in his turn sold that land to Jogendra Nath Brahmo, Nagendra Nath Brahmo and Kedar Nath Brahmo by a registered deed dated 13.1.1932. In this way, the three brothers became owners of 16 anas share of C.S. Khatian No.133/2. The land of C.S. Khatian No. 133/1 of that mouza belonged to Sashi Bhusan Brahmo, Janaki Nath Brahmo and Jadav Chandra Brahmo in equal shares. While owning 1/3rd share of the said land, Jadav died leaving behind 3 sons namely Jogendra Nath Brahmo, Nagendra Nath Brahmo and Kedar Nath Brahmo as his heirs who thus became the owners of 1/3rd share in Khatian No. 133/1. While in possession as such, Kedar Nath Brahmo and Nagendra Nath Brahmo settled their shares with Jogendra Nath Brahmo pursuant to two amalnamas dated 10th Ashin, 1349 B.S. and 15th Ashin, 1351 B.S. respectively and delivered possession thereof. Later Kedar Nath died leaving behind Jogendra Nath as his heir. Thus Jogendra Nath got the entire property of schedule 'Ka' to the plaint and being in possession thereof for more than 12 years he sold the same to the plaintiff by a registered deed dated 24.4.1970 on receipt of consideration money. The S.A. record in respect of suit properties was prepared in the names of 3 brothers Jogendra, Nagendra and Kedar. Because of wrong recording in the khatian, some unscrupulous persons have been trying to take lease of the shares of Nagendra and Kedar out of the property shown in schedule 'Ka' to the plaint from the defendant No.1 after declaring those properties as vested. The property shownin the schedule to the plaint cannot be declared vested and the plaintiff has got valid right, title, interest and possession in those properties. Therefore, the plaintiff was constrained to file the suit.
(3.) The defendant No.1, i.e., the Assistant Custodian, vested property, Pabna contested the suit by filing a written statement. The defendant Nos. 4-25 is the lessees who also filed a separate written statement but they ultimately did not contest the suit. The common case of the above mentioned defendants are that the suit properties were declared vested and the S.A. khatian was correctly prepared. Their further case is that Kedar, Nagendra and Jogendra Nath were 3 brothers but Kedar and Nagendra migrated to India long ago. The S.A. record was prepared at the instance of Jogendra who all along knew the fact of the record and the plaintiff had also the knowledge about the record. The interest of Kedar and Nagendra vested in the Government and accordingly, in vested property Miscellaneous Case No. 5(Suja)/1970-71, their interests were declared vested and the defendant No.1 has since leased out the same to the defendant Nos.4-25. Therefore, the suit is liable to be dismissed.;

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