Appellate Division Cases
(Civil)
PARTIES
Abdul Khaleque Pramanik being dead his legal representatives:Mossammat Chandrabhan Bewa and others ………………Petitioners
-Vs-
Rajab Ali Pramanik and others………… Respondents
JUSTICES
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Judgment Dated: 20th March 2007
The Code of Civil Procedure, Section 115(1), Order 9, Rule 13
That during pendency of the said Miscellaneous Case the plaintiff constructed illegally a house in the suit land and that there is no merit in the suit of the plaintiff and as such it is liable to be dismissed……………….. (4)
In view of the materials on record we hold that as M.R.R. Khatian appears to have been recorded in the names of the defendants they could pay rents in respect of the suit land for some period and mutated their names but the defendants failed to prove that the predecessor of the plaintiffs surrendered possession of the suit land and the defendants admitted possession of the plaintiffs. The basis of the claim of the defendant is surrender of the predecessor of the plaintiffs. In the absence of any evidence as to surrender allegedly made by the predecessor of the plaintiffs we are of the view that the preparation of M.R.R. record in the name of the defendants cannot stand in the claim of the plaintiff and as such the High Court Division considering the facts and circumstances and evidence on record reversed the finding of the courts below and thus made the rule absolute. ……………….(17)
Asad Hossain Choudhury, Advocate, instructed by Md. A/tab Hossain, Advocate-onRecord ……………….For the Petitioners
Chowdhury Md. Zahangir, Advocate-on-Record……………. For Respondent Nos. 1-3
Respondent Nos.4-9……………… Not represented.
Civil Petition For Leave To Appeal No.333 of 2005
(From the judgment and order dated 28.11.2004 passed by the High Court Division in Civil Revision No.2341 of 1996.)
JUDGMENT
Amirul Kabir Chowdhury J. Mossammat Mobitan Bewa and her son Md. Mojibar Rahman Pramanik being substituted in place of their predecessor defendant Abdul Khaleque along with heirs of deceased defendant Abu Sayed Pramanik and three other defendants have preferred this petition for leave to appeal against the judgment and order dated 28.11.2004 passed by a Single Bench of the High Court Division in Civil Revision
No.2341 of 1996 making the rule absolute.
2. The facts, in short, are that the plaintiff respondent Nos. 1 to 4 instituted Other Suit
No. 19 of 1986 which was renumbered as Other Suit No. 134 of 1990 for declaration
of their title in the suit land stating, inter-alia, that the suit land originally belonged
to landlord Amatullah Gasu and others and one Ali Mamud was a Korfa Tenant
under them and accordingly C.S Khatian No.441 of Mouza Rahabol was published
and that Ali Mamud died leaving one son named Hurmat Ali and a widow named Khushiban Bibi, the plaintiff No.5; thereafter Hurmat Ali died leaving three sons
plaintiff Nos.1 to 3 and a daughter plaintiff No.4 and they have been possessing the suit lrnd peacefully for more than 12 years by cultivating and growing crops; that under the State Acquisition and Tenancy Act the plaintiffs acquired rioty right in the suit land under the Government and that the defendant disclosed that M.R.R. Khatian for the suit land has been prepared in their names though they have no right, title and possession in the suit land and that the defendants asked the plaintiff to give up possession of the suit land in their favour and that the plaintiffs thereafter searched the Revenue Office and
then came to know that M.R.R. Khatian has been prepared in the names of the defendants and as such to remove cloud in their title the plaintiffs instituted the suit.
3. The defendant Nos. 1 to 5 filed written statement denying material allegations made in the plaint and stated that the suit land originally belonged to Khedmot Ullah predecessor of the defendants who died leaving wife Masiran and’two sons Ajmatullah and Tajmatullah and that Masiran died leaving her aforesaid two sons and that the predecessor of the plaintiffs Ali Mamud was a Korf tenant under Ajmatullah and others and that Ali Mamud failed to pay rent and so surrendered his Korfa tenancy right in favour of the landlord Ajmatullah and others and Ajmatullah died leaving three sons i.e.
defendant Nos. 1 to 3 and a grand daughter Laily through her deceased daughter Anisar and that Ajmatullah transferred his share to Ataul Hoque and others and the predecessors of the defendants paid rent to the landlord and thereafter to the Government and M.R.R. Khatian No.475 has been correctly prepared in the names of Ajmatullah, Tajmatullah, Masiran Bewa and Abdul Gafur and that the defendant No.2 set up a pump for irrigation in the suit land and in the month of Agrahayan, 1395 B.S. the plaintiffs took away the water pump for which the defendants filed a case against them.
4. It has further been averred by the defendants that the plaintiffs suppressed the summons of the suit i.e. Other Suit No. 19 of 1986, obtained an ex-parte decree whereupon the defendant filed Miscellaneous Case No.20 of 1987 under Order 9 Rule 13 of the Code of Civil Procedure which was allowed and that during pendency of the said
Miscellaneous Case the plaintiff constructed illegally a house in the suit land and that there is no merit in the suit of the plaintiff and as such it is liable to be dismissed.
5. The trial court recorded evidence of witnesses produced by both the parties and by judgment and decree dated 26.10.1994 dismissed the suit.
6. The plaintiff respondents preferred Other Appeal No.282 of 1994 which was heard by the learned Additional District Judge, First Court, Bogra and the aforesaid lower appellate court by the judgment and decree dated 23.05.1996 dismissed the appeal thereby affirmed the judgment and decree of the trial court.
7. Being aggrieved the plaintiffs moved the High Court Division under Section 115(1) of the Code of Civil Procedure in Civil Revision No.2341 of 1996 which was heard by a learned Single Judge who by impugned judgment and order made the rule absolute, setting aside the judgment and decree passed by the courts below and thus decreed the suit.
8. Hence is this petition.
9. In support of the petition Mr. Asad Hossrin Choudhury, learned Advocate appearing on behalf of the petitioners has taken us through the impugned judgment and other materials.
10. He submits that the plaintiffs had failed to prove their case up to the hilt since they had no rent-receipts and initially plaint was silent as to the possession through erection of huts and by their subsequent amendment, they made out a new case. The trial court had grounded his judgment on the basis of evidence meticulously canvassed. And the appellate court taking up all the points had confirmed by a plausible reasoning the trial court’s judgment.
11. He then submits that the defendants had proved their case by submitting their documentary evidence such as Modified Rent-Roll, series of rent-receipts, Mutation khatian etc.
12. Lastly he submits that the onus is upon the plaintiffs to prove their case independently
and not upon the weakness of the defendants.
13. We have considered the submissions made by the learned Advocate and perused materials on record.
14. The basis of the claim of the defendant petitioners is the story of surrender purported
to have been made by Ali Mamud. The High Court Division in this connection appears to have considered the facts and circumstances and evidence on record and observed: “I have gone through the evidences on record and found that D.W.I stated that he did not see Ali Mamud to surrender possession and he has no paper to show that Ali Mamud ever surrendered possession and he also failed to mention the date of surrender. D.W.I M. Fazlul Huq claimed to be the successor of the original landlord and he alleged to have purchased some lands from the com-sharer of the suit land. He is aged about 50 years and as such he is not a competent person to say or explain about the surrender. D.W.2 though
is a man of 76 years old but he has stated only that Ali Mamud possessed the suit land for 3 years thereafter his sons did not possess the same but this statement has not been corroborated by any other witness. The statements of the D.Ws. also do not speak of surrendering possession of the suit land in favour of the original landlord.”
15. The High Court Division further observed:”The C.S. record shows that Ali Mamud predecessor of the plaintiffs had Korf a tenancy in the suit land and possession of Ali Mamud in the suit land was uninterrupted and on the commencement of the Bangal
Tenancy (Amendment) Act, 1928 he had become a occupancy raiyat and then settled raiyat under Sections 19 and 20 of the Bengal Tenancy Act.”
16. Regarding possession of the parties the High Court Division found:
“The plaintiffs have succeeded in proving that they have continuous possession in the suit land since the time of Ali Mamud and after the State Acquisition and Tenancy Act came
into force, the petitioners as heirs of Ali Mamud has become tenant by operation of law under the government.”
17. In view of the materials on record we hold that as M.R.R. Khatian appears to have been recorded in the names of the defendants they could pay rents in respect of the suit land for some period and mutated their names but the defendants failed to prove that the predecessor of the plaintiffs surrendered possession of the suit land and the defendants admitted possession of the plaintiffs. The basis of the claim of the defendant is surrender of the predecessor of the plaintiffs. In the absence of any evidence as to surrender allegedly made by the predecessor of the plaintiffs we are of the view that the preparation of M.R.R. record in the name of the defendants cannot stand in the claim of the plaintiff and as such the High Court Division considering the facts and circumstances and evidence on record reversed the finding of the courts below and thus made the rule
absolute.
19. We have perused the impugned Judgment and order of the High Court Division and in the facts and circumstance of the case we are of the view that the High Court Division correctly decided the case. The impugned judgment therefore does not call for interference.
20. In view of the discussion made above, the petition appears to be without any merit.
21. The petition is accordingly dismissed.
Source : V ADC (2008),515