Appellate Division Cases
(Civil)
PARTIES
Abdul Khaleque………………… Petitioner.
-Vs-
Shamsuddin and others………………… Respondents.
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Judgment Dated: 23rd April 2007
The state Acquisition Tenancy Act Section 144A
The Code of Civil Procedure, Section 115(1)
Shambhu Nath Paddar-vs- Bangladesh Railway reported in 43 DLR (AD) 82 Rokeya Begum-vs- Abu Zaher of others reported in 4 MLR (AD) 171
The Court below found on evidence that the predecessor of the plaintiff obtained pattan from the Zaminder Majumder Waqf Estate, on the basis of which record of right has been prepared in their name though the defendant filed Title Suit No.3 of 1991 claiming 50% title thereto on the basis of joint pattan but the suit was withdrawn. The defendant failed to produce the pattan document and ultimately relied on adverse possession. The laintiffs have proved the permissive possession of defendant. The defendant though alleged the possession since 1984 but the alleged licence was dated 1994 which have been interpolated by the defendant overwriting 1984. The plaintiff has proved the defendant’s possession since 1994 and the suit was filed in 1998. Thus the plea of defendant Nos. I and 3 as to adverse possession falls the ground. The plaintiff was paid rent in supported of record of rights in their names……………………. (6)
The well settled law is that unless there f is gross misreading or non consideration of material evidence on record or misconstruction of any document or that finding are perverse and contrary to law or evidence resulting in an error in the decision occasioning failure of justice, the concurrent findings can not be interfered with by the revisional Court under Section 115(1) of the Code of Civil Procedure. The judgment and decree passed by the Courts below does not call for interference.”………….. (8)
Mohammad Nawab AH, Advocate-on-Record ……………….For the Petitioner Muhammad Nazrul Islam, Senior-Advocate, instructed by N. I. Bhuiyan Advocate-on-record……………………… For the Respondents
Civil Petition For Leave To Appeal No.274 of 2005
(From the judgment and order dated 5th April, 2004 passed by the High Court Division in Civil Revision No. 1127 of 2000).
JUDGMENT
Mohammad Fazlul Karim J: This petition for Leave to Appeal is directed against the judgment and order dated 05.04.2004 passed by the High Court Division in Civil Revision No. 1127 of 2000 discharging the Rule upholding the judgment and decree dated 25.11.1999 passed by the learned District Judge, Hobiganj in Title Appeal No. 132 of 1998 affirming those dated 22.10.1998 passed by the Senior Assistant Judge-in-charge,Baniachong, Hobiganj in Title Suit No.113 of 1997.
2. The case of the plaintiff Nos. 1-4 is that they instituted Title Suit No.113 of 1997 before the Court of learned Senior Assistant Judge, Baniachong, Ilobiganj for declaration of title and recovery of khas possession in respect of the suit land stating, inter alia, that the suit land originally belonged to 3(three) brother namely, Hashimullah, Nashibullah and Thandai Ullah and they were in possession and accordingly record of right were prepared in their name and they enjoyed the property by digging doba in the suit land. The suit land situated contiguous to the north of plot No.818 belonging to respondents.
The respondent admitted the same in the schedule of the plaint as schedule of title suit No.32 of 1984. The respondent brought title suit No.3 of 1991 against the plaintiff with a view to grab the suit property and when the plaintiffs filed written statement he has withdrawn the said suit on condition to sue a fresh. After the withdrawal of the suit the relationship between plaintiffs and defendant developed and on the request of the defendant, the plaintiffs permitted the defendant to keep timbers of his Saw Mills. On 15th Bhadra 1404 B.S. the plaintiffs requested the defendant to remove timbers from the suit land. Defendant refused to remove the timbers from the suit land and denied the title of the plaintiffs. Hence the suit.
3. The defendant-petitioner contested the suit filing written statement denying the allegations made in the plaint stating, inter alia, that the suit is barred by limitation and not maintainable on its present form the suit land originally belonged to Majumder Estate and his father Jona Ullah and predecessor of the plaintiffs obtained settlement of the suit land along with other land from Majumder Estate on Srabon 1340 B.S. by executing kabulyat in favour of Manager of Majumder Estate by Jona Ullah and Mir Box and they are in possession in ejmali by paying rent regularly to the Zamindcr. At the time of survey operation Jona Ullah was ill and minor, consequently, the survey officers wrongly prepared the suit land in the name of 3 (three) brothers i.e. the sons of Mir Box but they
acquired no right, title and interest in the suit land by dint of wrong recording and the plaintiffs have no possession. That the defendant is in possession of the suit land and continuing his business and as such, the suit is liable to be dismissed.
4. Mr. Mohammad Nawab Ali, learned Advocate-on-record, appearing for the petitioner submits that the High Court Division has wrongly relied on the observation and finding of the Courts below and has failed to exercise its jurisdiction to determine the issue regarding the acquisition of the suit property by both the predecessors of the plaintiffs and defendants with reference to their possession; that since a khatian of land is not a document of title, the learned Single Judge of the High Court Division has wrongly considered the presumptive value of the S.A. Khatian not backed by a trust worthy document or legal testimony. Mr. Ali, lastly, submits that since the possession of the
defendant is supported by installation of a Saw Mills, it may not be easily out-weighed in pursuance of the story of alleged possession of the defendant as permissive as alleged by the plaintiff.
5. Mr. Muhammad Nazrul Islam, learned Counsel, appearng for the respondents submits that Mir Box the predecessor of the plaintiff obtained pattan from Majumder Waqf state, the defendants ‘ also admitted in his chief that Mir Box obtained pattan from the Majumder Waqf Estate. He further submits that earlier the defendant filed Title Suit No.32 of 1984 and also filed Title Suit No.3 of 1991 that both the predecessor of the plaintiff and defendant obtained joint pattan from the Zaminder the defendant claimed that they were given pattan and the alleged pattan was obtained by the defendants predecessor and others but no documents were produced. He further submits that under
Section 144A of the State Acquisition Tenancy Act an entry in the record of right has a presumptive value of its correctness. All the entry in the record of right appears in the name of the plaintiffs predecessor Mir Box who obtained pattan from the Zaminder. The trial Court as well as the appellant Court considering all the evidences on record came to a concrete finding that the plaintiff proved their right, title, interest and possession over the suit property and accordingly, decreed the suit. The defendant failed to produced any document of his kabuliyat as claimed. In support of his contention he cited the case of
Modarres Ali and others-vs Bishambar Das being dead his heirs reported in 46 DLR 34, the case of Abdur Rahim-vs-Tarequl Rahman reported in 50 DLR 66 and the case of Doyal Chandra Mondal and others-vs-Assistant Custodian vested and non resident property reported in 50 DLR186.
6. The Court below found on evidence that the predecessor of the plaintiff obtained pattan from the Zaminder Majumder Waqf Estate, on the basis of which record of right has been prepared in their name though the defendant filed Title Suit No.3 of 1991 claiming 50% title thereto on the basis of joint pattan but the suit was withdrawn. The defendant failed to produce the pattan document and ultimately relied on adverse possession. The plaintiffs have proved the permissive possession of efendant. The defendant though alleged the possession since 1984 but the alleged licence was dated 1994 which have been interpolated by the defendant overwriting 1984. The plaintiff has proved the defendant’s possession since 1994 and the suit was filed in 1998. Thus the plea of defendant Nos. I and 3 as to adverse possession falls the ground. The plaintiff was paid rent in supported of record of rights in their names.
7. The High Court Division under the circumstances rightly held that ‘The findings regarding the title and possession by both the Courts below are concurrent finding of facts and there is no perverse finding and the finding based on evidences on record and there is no allegation of misreading or non consideration of materials on record. Which has been supported in the case of Shambhu Nath Paddar-vs- Bangladesh Railway reported in 43 DLR (AD) 82, the case of Rokeya Begum-vs- Abu Zaher of others reported in 4 MLR (AD) 171. 8. The well settled law is that unless there is gross misreading or non consideration of material evidence on record or misconstruction of any document or that finding are perverse and contrary to law or evidence resulting in an error in the decision occasioning failure of justice, the concurrent findings can not be interfered with by the revisional Court under Section 115(1) of the Code of Civil Procedure. The judgment and decree passed by the Courts below does not call for interference.”
9. In view of the above, we find so substance in submissions of the learned Advocate for the petitioner.
10. Accordingly, this petition is dismissed.
Source : V ADC (2008),412