Mohammad Younus and others Vs. Abdus Sukkur and others

Appellate Division Cases

(Civil)

PARTIES

Mohammad Younus and others………………………Petitioners

-VS-

Abdus Sukkur and others ……………………………..Respondents

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

JUDGEMENT DATE: 5th November 2006

The Bengal Tenancy Act, Section 103B

Seeking separate saham of 34 decimals of land on partition of 1.14 acres of land…………….(2)

That Hakim Jan Bibi’s heirs by inheritance is not entitled to any land since Hakim Jan Bibi during her life time exhausted her interest in respect of the land she got by inheritance from Omar Ali and thus the successive heirs of Hakim Jan Bibi is not entitled to any share in the land in suit by inheritance but the heirs of Jebal Hossain will get 14 1/3 decimals of land on the basis of Ext.7 ……………………(8)

The High Court Division on modification of the judgment and decree of the lower appellate Court allotted 14 1/3 decimals of land in the share of the heirs of Jebal Hossain from the land in suit. The High Court Division while making the Rule absolute observed that heirs of Hakim Jan Bibi shall not get any land from the land in suit by inheritance ……………………(9)

Civil Petition For Leave to Appeal No. 1101 of 2005 (From the Judgment and Order dated May 11, 2005 passed by the High Court Division in Civil Revision No. 749 of 1996)

A.J. Mohammad Ali, Senior Advocate, instructed by Md. Firoz Shah, Advocate-onrecord…………….For the Petitioners

Respondents……………….. Not represented.

JUDGMENT

1. Md. Ruhul Amin J : This petition for leave to appeal is directed against the judgment dated May 11, 2005 of a Single Bench of the High Court Division in Civil Revision No.

749 of 1996 making absolute the Rule obtained therein upon setting aside the Judgment and decree dated January 22, 1996 of the 3rd Court of Subordinate Judge (now Joint District Judge) and Artha Rin Adalat, Chittagong in Other Appeal No. 462 of 1993 allowing the same upon reversing the judgment and decree dated September 28, 1993 of the 2nd Court of Additional Senior Assistant Judge, Sadar, Chittagong in Other Case No. 155 of 1990 dismissing the same.

2. The Suit was filed seeking separate saham of 34 decimals of land on partition of 1.14 acres of land. The appellate Court upon allowing the appeal passed a decree in favour of the plaintiff allotting separate saham for 34 decimals of land from the land described in the schedule attached to the plaint.

3. It was the case of the plaintiff that the land described in the schedule belonged to Hakim Jan Bibi and Abdul Ali in equal share who acquired the same by the registered patta dated February 17, 1902, that Hakim Jan Bibi after the death of her first husband married Amir Hossain, that Hakim Jan Bibi gifted 12 gandas of land out of her share from the land of the patta dated February 17, 1902 to her son Jebal Hossain by the 2nd husband, that the gift was made by the registered deed of gift dated June 25, 1928, that possession of the land so gifted was made over to Jebal Hossain who built his homestead in the said gifted land and was living there, that Hakim Jan Bibi died leaving 4 sons of whom 3 were by her first husband and another by her second husband and 2 daughters by her 2nd husband, that Jebal Hossain died leaving plaintiff Nos. 1-3 as sons and plaintiff No. 4 as daughter, that Hakim Jan Bibi’s daughter Sundar Bibi (by second husband) died leaving defendant No. 17 as her heir, that land left by Hakim Jan Bibi’s first husband and by Hakim Jan Bibi devolved upon by the successive heirs.

4. It was the case of the plaintiffs that their predecessor got 12 gandas of land by gift and

5 gandas of land by inheritance and this inherited 17 gandas of land i.e. 34 decimals of land, that as Jebal Hossain at the time of preparation of R.S. record was in Burma his step brothers got the R.S. record prepared in their names showing share to the extent of 7 annas each and showing share of Hakim Jan Bibi to the extent of 2 annas, that the R.S. record so prepared was wrong, that after the death of Hakim Jan Bibi her son Jebal Hossain was in possession of the land got by gift and by inheritance and that after the death of Jebal Hossain plaintiffs are in possession of their land in ejmali with the other co-sharers, that plaintiffs requested the defendants for partition of the land in suit but they denied. Hence the suit.

5. The suit was contested by defendant No.l denying the material averments made in the plaint and contending that the suit as framed is not maintainable and the same is bad for defect of party and that in the absence of seeking declaration of title and recovery of possession the suit is not maintainable. The specific case of the defendant was that the land in suit belonged to Omar Ali who died leaving 2 sons by name Moqbul Ali and Abdul Ali and a widow Hakim Jan Bibi, that C.S. record was prepared in their names, that the patta dated February 17, 1902 and the deed of gift dated September 25, 1928 by Hakim Jan Bibi in favour of Jebal Hossain are fictitious documents and that Jebal Hossain never built homestead in the land in suit, that R.S. record was correctly prepared and that Hakim Jan Bibi had only l/8th share in the land described in the schedule and that the plaintiffs are entitled to 1/16th share in the land for the partition whereof suit has been filed.

6. The trial Court dismissed the suit with the findings that the plaintiffs failed to prove the patta on the basis of which they are claiming the land in suit and that plaintiffs being the heir of Hakim Jan Bibi they are entitled to the extent of the share in the land left by Hakim Jan Bibi, that the suit is bad for defect of party since the co-sharers of the land in suit have not been made party.

7. On appeal the appellate Court decreed the suit on the findings that Jebal Hossain acquired title in the land in suit on the basis of the deed of gift and that record of right was prepared upon leaving out the names of the heirs of Jebal Hossain and Hakim Jan Bibi. As against the judgment of the appellate Court the heirs of the defendant No.l moved the High Court Division in revisional jurisdiction and obtained Rule.

8. The High Court Division made, upon modification, the Rule absolute on the finding that the patta on the basis of which plaintiffs’ predecessor Hakim Jan Bibi said to have acquired 8 annas share in the land in suit is in the name of Abdul AH who happens to be one of the sons of Omar AH who died leaving Abdul AH and another son Moqbul Ali and widow Hakim Jan Bibi and in that state of the matter R.S. record was prepared showing 2 annas share in the name of Hakim Jan Bibi and 7 annas in the names of each of the sons of Omar AH, that although plaintiff contended that R.S. record was wrong but they failed to establish their said contention or in other words failed to rebut the presumption of the correctness of the record as available under Section 103B of the Bengal Tenancy Act. that the patta as claimed by the plaintiffs in support of their claim in the land in suit in fact stands in the name of Abdul Ali alone and in the background of the facts and the materials brought on record the same was not acted upon, that the appellate Court was wrong in holding on the basis of noting about the patta in the R.S. record that Hakim Jan Bibi had the 8 annas share of the land of the said patta, although patta which has been marked as Ext. ‘Uma’ as well as Ext.8 clearly shows patta dated January 17. 1902 is in the name of Abdul Ali alone, that the case of the defendant is that the land in suit belonged to Omar Ali who died leaving 2 sons, Abdul Ali and Moqbul Ali and a widow Hakim Jan Bibi and thus Hakim Jan Bibi inherited 2 annas share in the land left by Omar Ali and thus the plaintiffs are co-sharers in the land of Hakim Jan Bibi and the said fact is not denied or disputed by the contesting defendant and in that state of the matter plaintiffs are entitled to the extent of share to the land in suit as heirs of Hakim Jan Bibi, that Hakim Jan Bibi’s heirs by inheritance is not entitled to any land since Hakim Jan Bibi during her life time exhausted her interest in respect of the land she got by inheritance from Omar Ali and thus the successive heirs of Hakim Jan Bibi is not entitled to any share in the land in suit by inheritance but the heirs of Jebal Hossain will get 14 1/3 decimals of land on the basis of Ext.7.

9. The High Court Division on modification of the judgment and decree of the lower appellate Court allotted 14 V3 decimals of land in the share of the heirs of Jebal Hossain from the land in suit. The High Court Division while making the Rule absolute observed that heirs of Hakim Jan Bibi shall not get any land from the land in suit by inheritance.

10. We have heard the learned Counsel and perused the materials on record. The learned

Counsel for the petitioner could not point out error of the kind in the judgment of the High Court Division calling for interference.

11. Accordingly the petition is dismissed.

Ed.

Source: IV ADC (2007), 296

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