MD. FAZLUL HAQUE Vs. ABDUL MALEK ALIAS MAYA MIAH
LAWS(BANG)-2009-11-7
SUPREME COURT OF BANGLADESH
Decided on November 12,2009

Md. Fazlul Haque Appellant
VERSUS
Abdul Malek Alias Maya Miah Respondents

JUDGEMENT

MD.ABDUL MATIN,J. - (1.) This petition for leave to appeal is directed against the judgment and order dated 27.11.2008 passed by the High Court Division in Civil Revision No. 1863 of 2007 discharging the Rule and affirming the judgment and order dated 19.03.2007 passed by the learned Senior Assistant Judge, Sadar, Sylhet in Miscellaneous Case No.18 of 2006 rejecting the application for setting aside the order dated 11.03.2007 dismissing the miscellaneous case.
(2.) The facts, in short, are that the respondents herein as plaintiffs instituted S.C.C Suit No.9 of 2005 in the Court of learned Senior Assistant Judge, Sadar, Sylhet impleading the petitioner herein as defendant for eviction of the defendant from the suit premises stating, inter alia, that the suit Taluk No. 46687 of 1979 under mouza Chottrish of Upazila Fenchegonj and other land belonged to the predecessor of plaintiff, Mohammad Asim and his 2 brothers namely Mohammad Asim and Mohammad Kosir though the same was recorded in the name of only Mohammad Asim in the Thak Jorip and while owning and possessing on amicable partition Mohammad Asim died leaving behind his only son Mohammad Farid who thereafter died leaving behind his only son Mohammad Abdul Latif. Mohammad Asim died leaving behind 3 sons namely Jabid Ali, Sunahor Ali and Ajob Ali. 0.70 acres of land was recorded in the name of Abdul Latif and in separate khatian rest 0.12 acres and 0.02 acres of land had been recorded in the name of Jabid Ali and Abdul Latif respectively. Jabid Ali died leaving behind 3 sons namely Mubid Ali, Tojomul Ali and Tofozzul Ali and 2 daughters. Mubid Ali and Tojomul Ali on getting 2nd schedule land amicably in their share transferred the same in favour of Ijjad Ali vide registered kabala dated 16.10.1960 and delivered possessing thereof. Ijjad Ali transferred the said 2nd schedule land on 06.12.1962 in favour of Abdul Latif the predecessor of the plaintiff and delivered possession but as he died before executing the kabala his heirs subsequently executed and registered the said kabala. His heirs subsequently executed and registered the said kabala on 01.12.1985 in favour of plaintiffs and pro forma defendant Nos.39-40. The defendant Nos.1 and 2 predecessor of defendant Nos.10-13, Mokrom Ali, predecessor of defendant Nos.14-19, Mosoddor Ali and one Moiz Uddin and 6 persons mutated the suit land in their name against which plaintiff filed mutation appeal and then it was revealed that with the collusion of Mubid Ali the said 6 persons by creating a "Muktipatra" mutated their names. The suit land was finally recorded in the name of the plaintiffs and proforma defendant Nos.39-47. In the manner as stated the plaintiff and his co-sharer were owning and possessing the suit land. Defendant No.1 by claiming the suit land of his own gave threat to dispossess the plaintiff from the suit land which constrained the plaintiff to file a title suit being No.25 of 2000 and during pendency of that suit on 19.06.2000 defendants forcibly dispossessed the plaintiff from the suit land. The plaintiff had withdrawn the suit as there were some formal defects in framing the suit and then instituted the instant suit for declaration of title and recovery of khas possession of the second schedule land. The defendant No. 1 contested the suit by filing written statement contending, inter alia, that second schedule land belonged to Jabid Ali who while owing and possessing the suit land executed and registered a lease deed on 02.12.1955 in favour of Joroi Ullah, the father of defendant Nos. 1 and 5 others. While Joroi Ullah and others were holding and possessing the suit land the same was recorded in the name of Jabid Ali and thereafter the heirs of Jabid Ali on 02.11.1982 executed and registered a "Muktipatra" in favour of the contesting defendant and thus the contesting defendant and their co-sharer mutated the suit land in their name and paid rent to the government. The plaintiff had preferred a mutation appeal and that was rejected on 15.03.1988. Moin Uddin and others sold out their share to the defendant No.1 by a registered deed dated 04.01.1997 and delivered possession thereof. The suit land was recorded in the name of the defendant No.1. The boundary as described in the plaint is incorrect and unspecified and without holding local investigation the plaintiff can not get any relief. With a view to causing loss to the defendant the plaintiff by withdrawing earlier suit instituted the instant suit with false claim as such he prayed for dismissal of the suit.
(3.) The petitioner was defendant of the suit. No notice was served upon the defendant and as such upon ex parte hearing the learned Senior Assistant Judge, Sadar Sylhet decreed the suit by judgment and order dated 08.11.2005.;


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