MD. AMZAD HOSSAIN ALIAS KHOKA Vs. DR. A.K.M. MOBARAK HOSSAIN

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 24.04.2006 passed by a Single Bench of the High Court Division in Civil Revision No. 2149 of 2000 discharging the Rule.

(2.) The short fact is that the plaintiff-respondent Nos.1-8 instituted Other Class Suit No. 56 of 1993 in the court of the Assistant Judge, Trishal, Mymensingh for declaration of title in the suit land and also for recovery of khas possession contending, inter alia, that the suit land situated in the Alahari Mouza under Trishal Thana of District Mymensingh belonged to Ex-Zamindar Binayak Das Acharjaya Chowdhury and accordingly the same was correctly recorded in their name in 321 settlement Khatian. Binayak Das Acharjaya Chowdhury built a big tin-shed Kachary house in the suit land where the Nayebs used to collect taxes. In S.A. Operation, son of Binayak Das, Bakul Acharjaya Chowdhury gave the said Kachari Ghar to the plaintiff for looking after it and the plaintiff used to practice as a doctor in the Kachary. In 1959 Bakul Acharjaya Chowdhury sold the said Kachari house to one Ayub Ali Master and the purchaser removed the said Tin shed house from the suit land and re-built it in his own house. Thereafter Bakul Acharjaya Chowdhury sold out the suit land to the plaintiff by registered kabala dated 25.09.1960 and handed over possession to him. The Pakistani Army burnt the said registered kabala in 1971 from his house at Purabari Bazar. During R.O.R. Operation the suit land was recorded in the name of Bakul Acharjaya Chowdhury but the plaintiff was owning and possessing the same by fishing and cultivating and paying rent to the government in his name. Thereafter the defendant petitioner tried to have a fraudulent settlement deed in his name from Bakul Acharjaya Chowdhury. In 1988 the plaintiff acquired a saleable interest decree from Trishal Assistant Judge Court and on 29.01.1988 the defendant dispossessed the plaintiff by force and since then the defendant petitioner has been living there with his family; the defendants had no possession in the suit land before dispossessing the plaintiff. Thereafter the plaintiff filed a criminal case against the defendant No.1 and the documents of the defendants were challenged and it was kept in safe custody which case was dismissed for non-prosecution.

(3.) The defendant-petitioner No.1 contested the suit by filing written statement denying all the material allegations of the plaint alleging that the suit belonged to the then Zamindar Haridas Acharjaya Chowdhury and C.S. record was prepared in the name of Haridas, Bidhu Bhushan, Shredam, Binayak, Tarak Das, Priya Kumar and Shalil Kumar. Thereafter the father of the defendant No.1 took pattan by way of "Hukum Nama" on 22nd Ashin, 1357 B.S. in the name of the defendant No.1. The father of the defendant No. 1 used to possess the suit land because the defendant No.1 had been living in the town for carrying on business. The defendant No.1 came back to his village home and with the financial assistance of his father built a house in the suit land and has been living there with his family since then. During R.O.R. Operation, R.O.R. working parcha was prepared in the name of defendant No.1 vide No.321/1 but at the time of final publishing of R.O.R. this suit land was recorded in the name of the Ex-Zamindar. The plaintiff is a cunning person and he in collusion with a Muchi family who is the pattan receiver of a portion of the suit land and with the assistance of a deed writer and Head Clerk of the District Registrar office made a fraudulent deed which was shown to have been prepared on 20.09.1960 and registered on 25.10.1960. The plaintiff never had any title and possession in the suit land. The plaintiff then managed to have the suit land recorded in his name. Hence the defendant No.1 made objection under section 31 which is now pending for disposal. The plaintiff is harassing the defendants by filing criminal case and achieved a fraudulent decree in Other Class Suit No.12 of 1984 without impleading him as party. The aforesaid decree is not binding upon him and the instant suit is liable to be dismissed in favour of defendant No.1.