Appellate Division Cases
(Civil)
PARTIES
Billal Hossain and others……………. Petitioners
-VS-
Mofizur Rahman and others………………. Respondents.
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGMENT DATED: 22nd August 2006
Petition is dismissed
Since the ejmali property left by Alimuddin was never partitioned by metes and bounds and the plaintiffs kabala is earlier then the defendant’s kabala so their kabala Ext. 4 will prevail over the kabala of defendants …………………….(7)
Plaintiffs have proved their possession in the suit land and that admittedly Fulmoti and Panmoti, after their marriage were living with their husbands at different villages and so they, not being in possession of the suit land physically, were not in a position to deliver possession of the same to Ayub AH, the predecessor-in-interest of defendant Nos. 1-3 at the time of the alleged sale and so the defendants therefore did not get possession in the suit plots at the time of their purchase which is about 2 years after the purchase made by the plaintiffs from Dud Mia and thus Ayub Ali did not get any possession in the suit plot No. 2719 at the time of the alleged purchase by the kabala Ext. Ka ……………..(7)
Abdul Quayum, Senior Advocate instructed by Sayed Mahbubur Rahman, Advocate-on-Record…………………………………. For the Petitioners.
Nurul Islam Chowdhury, Advocate-on-Record…………………… For the Respondents
Civil Petition for Leave to Appeal No. 701 of 2005
(From the judgment and order dated 23rd February, 2005 passed by the High Court
Division in Civil Revision No. 3050 of 2001).
JUDGMENT
Md. Tafazzul Islam J: This petition for leave to appeal arises out of the judgment
and order dated 23.2.2005 of a Single Bench of the High Court Division passed
in Civil Revision No. 3050 of 2001 discharging the Rule obtained against the
judgment and decree dated 22.3.2001 of the learned District Judge, Comilla in Title
Appeal No. 254 of 2000 reversing those of dated 19.9.2000 of the learned Senior
Assistant Judge, Chandina, Comilla in Title Suit No. 28 of 1999 dismissing the suit.
2. The plaintiffs instituted the above suit seeking declaration of their title in the suit
land on the averments that the suit land, together with the other lands of C.S. Khatian No. 258, originally belonged to Amjad Ali and Jabbar Ali; by amicable partition Amjad Ali possessed the entire land of suit plot No. 2719 and half portion of suit plot No. 2718 and Jabbar Ali possessed the remaining half portion of the above suit plot No. 2718; Amjad Ali died leaving behind two sons, Wahid Ali and Rawsan Ali; Wahid Ali transferred 34 decimals of land in favour of Alimuddin from plot No. 2719 by two registered kabalas dated 10.01.1959 and 31.12.56 and male over possession thereof to him; Rawshan Ali sold 12 decimals of land from plot No. 2719 to Ambar Ali by two registered Kabalas dated 17.01.47 and 18.09.47; Haider Ali sold 15 decimals of land to Ansar Ali from plot No. 2719 and 15 decimals of land from Plot No. 2718 to Alimuddin by registered kabala a dated 20.02.48; Alimuddin while owning and possessing in total 67 VJ decimals of land from Plot No. 2718 and 2719 died leaving behind one son Dud Miah, one wife Joferer Nessa and two daughters. Fulmati and Panmati: Dud Miah, Who on amicable partition with his mother and sisters got the aforesaid 67 decimals of land, transferred 15 decimals of land from Plot No. 2718 and 52 decimals of land from Plot No. 2819 to the plaintiffs by kabala dated 3.5.1993 and since then the plaintiff had been possessing the same, the defendants have no title and possession in any portion of the suit land but they on 25.4.1999 claimed title over the same and hence the suit.
3. The defendants contested suit by filing joint written statement contending, inter alia, that the suit has not been properly valued, is barred by limitation and is not maintainable without the refief of partition as well as recovery of possession; Alimuddin while owning and possessing the suit land died leaving behind one son Dud Mia, two daughters Fulmati and Panmati and one wife Joferer Nessa; by amicable partition Fulmati and Panmoti
got 51 decimals of land from Plot No. 2719 and subsequently they by kabala dated 27.04.1995 transferred their interest to Ayub Ali, father of the defendant Nos. 1 to 3, and also handed over possession of the above land to him; Ayub Ali died leaving behind three sons, the defendant Nos. 1-3, one wife and four daughters; Dud Miah had no title and possession over the land of Plot No. 2719 and accordingly had no right to transfer any land from the above plot to the plaintiffs; the kabala dated 03.05.93 is fraudulent, inoperative, without consideration and void and the plaintiffs acquired no title and possession by the said kabala.
4. The learned Assistant Judge, after hearing, dismissed the suit. The plaintiffs then preferred Title Appeal No. 254 of 2000 and the learned District Judge, Comilla, after hearing, allowed the appeal. The defendants then moved the High Court Division and obtained Rule in Civil Revision No. 3050 of 2001 and the High Court Division, after hearing, discharged the Rule.
5. The learned counsel appearing for the defendant petitioners submits that the High Court Division failed to consider that Dud Miah, by exhibit-Gha series, transferred his entire property and so the plaintiff respondents, being purchasers from Dud Miah, were not entitled to a decree for declaration of title; the sisters of Dud Miah being co-sharer and also in ejmali possession of the suit land no decree for declaration of title could be
passed against their transferees unless a case of ouster was made out; the finding
of possession as found by the learned District Judge is based on non-consideration
and misreading of material evidence on record and the High Court Division also did not consider that a suit for declaration of title is not maintainable against co-sharers without a prayer for consequential relief and that the provision of section 47 of Registration Act is misconceived because Dud Mia was not entitled to transfer the properties belonging to his sisters.
6. As it appears the trial Court dismissed the suit holding that the plaintiffs purchased
60decimals of land from Dud Mia by sale deed dated 03.05.93, Ext-4, from suit plot Nos. 2718 and 2719 only and that Dud Miah, who had no subsisting title in the suit land, could not transfer the suit land to the plaintiffs and accordingly by their alleged purchase from Dud Mia, the plaintiffs did not acquire any title to the suit land and further the defendants were in possession of .51 decimals of land of plot No. 2719 and thus the plaintiffs having no title or possession in the suit land were not entitled to get any decree.
7. However the appellate Court on consideration of the evidence on record found that Dud Miah had subsisting interest in 1.80 acres of land out of 3.60 acres of land left by his father Alimuddin and Dud Miah also purchased 24 decimals of land with his own money and thus he became owner in respect of 2.04 acres of land including .15 decimals of land from suit plot No. 2718 and the remaining portion from suit plot No. 2719 and the plaintiffs) also proved their title and possession in the suit land. The High Court Division found that there is no dispute as to the fact that the suit land belonged to
Alimuddin who acquired the same by registered kabalas, Exts. 2 and 3, and he died
leaving behind one son Dud Miah. two daughters in Fulmoti and Panmoti and one
widow Jofere Nessa and it is on record that the Alimuddin died leaving behind 3.60 acres of land and so Dud Mia inherited 1.80 decimals of land from his father and that records also show that Dud Mia also purchased .24 decimals and thus he became owner of 2.04 acres of land and that the kabala dated 3.5.93, Ext. 4, shows that .6O’ decimals of land was sold by Dud Mia to the plaintiffs from suit plot Nos. 2718 and 2719. The High Court Division found that the contesting defendant did not claim any land from plot No.
2718 and according to them Dud Mia had no subsisting interest in the suit land to transfer to others because long before his transfer his sisters Fulmoti and Panmoti transferred the suit land to defendant Nos. 1-3 by kabala dated 27.4.95, Ext. Ka. and that the learned District Judge considering the cases of both the parties found that Dud Mia had subsisting interest in the suit land of suit plot Nos. 2718 and 2719 and accordingly the plaintiffs acquired valid title by their purchase of 60 decimals of land from Suit Plot Nos. 2718 and 2719 the contesting defendant Nos. 1-3 having claimed 51 decimals of land in Suit Plot No. 2719 by a subsequent sale deed dated 27.4.95, Ext. Ka, from Fulmot and
Panmoti High Court Division held that “since the ejmali property left by Alimuddin was never partitioned by metes and bounds and the plaintiffs kabala is earlier then the defendant’s kabala so their kabala Ext. 4 will prevail over the kabala of defendants”. The High Court Division further found that the learned District Judge, the final court of facts, having come to the conclusion that the plaintiffs have proved their possession in the suit
land and that admittedly Fulmoti and Panmoti, after their marriage were living with their husbands at different villages and so they, not being in possession of the suit land physically, were not in a position to deliver possession of the same to Ayub Ali, the predecessor-in-interest of defendant Nos. 1-3 at the time of the alleged sale and so the defendants therefore did not get possession in the suit plots at the time of their purchase which is about 2 years after the purchase made by the plaintiffs from Dud Mia and thus Ayub Ali did not get any possession in the suit plot No. 2719 at the time of the alleged purchase by the kabala Ext. Ka. The High Court Division also found that the learned
District Judge considering the provisions of Order I rule 9 CPC and also citing few
decision of superior courts held in the facts and circumstances of the present case the suit should not fail for defect of parties and further the grounds taken in the revisional application are of general nature and there is no ground with regard to misreading of evidence, non consideration or misconstruction of evidence.
8. We are of the view that High Court Division after due consideration of the evidence and materials on record and answering the relevant issues as raised arrived at a correct decision and there is no cogent reason to interfere with the side decision.
9. The petition is dismissed.
Source : V ADC (2008), 54