Appellate Division Cases
(Civil)
PARTIES
Abul Hussain and others……………………… Appellants
-vs-
Afezuddin Mondal and others…………………..Respondents
JUSTICE
Mainur Reza Chowdhury. J.
Syed J. R. Mudassir Husain. J
JUDGEMENT DATE: 19 March 2002.
The Code of Civil Procedure, Section 11.
42 DLR (AD) 289.
The suit land was settled with the plaintiff’s fore fathers and therefore unless the defendants were successful in providing is tafa (surrender ) of the suit land, which was the main basis of their pleading they could not get any relief. Here the High Court Division again decided question of fact that the defendants could not establish that there was Isatafa (surrender ) of the suit and by the forefather of the plaintiffs although both the courts below were satisfied from evidence on record what the suit land was surrendered. It has been held in the case referred to above that a surrender of an under tenancy right need not be in writing. It may be inferred from act and conduct of parties as well. The High Court Division therefore erroneously found that the appellants could not prove their claim of Istafa. We are therefore in agreement with the submission made on behalf of the appellant that the High Court Division was in error in deciding and reversing the question of fact in respect of possession and Istafa (surrender) which were found in favour of the appellants by the Courts below ……………………(5)
Civil Appeal No. 66 of 1998 (From the judgment and order dated 6 April 1995 passed by the High Court Division in Civil Revision No. 371 of 1991)
Rafique-ul-Huq, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-
Record…………………. For the Appellants
Fazlul Karim, Senior Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record. …………or Respondent Nos.1 -3
Ex-Parte……………………….. Respondent Nos. 4-75
JUDGMENT
Mainur Reza Chowdhury, J :- This appeal has arisen out of leave granted by this
Division in Civil Petition for leave to appeal No. 353 of 1995 against judgment passed by a Single Bench of the High Court Division in Civil Revision No. 371 “of 1991 making the Rule absolute on setting aside the judgment and decree passed in Title Appeal 170 of 1987 of the Court of Subordinate Judge and Artha Rin Adalat, Jessore affirming those passed in Title Suit NO. 30 of 1986 of the Court of Assistant Judge, Chowgacha.
2. The heirs of defendant No. 1 and defendant Nos. 5-9 are the appellants. Respondents
1-73 instituted a suit, Title Suit No. 834 of 1973 against the appellants and others for declaration of title and confirmation of possession in respect of the suit land, The suit was eventually renumbered as Title Suit No. 30 of 1986 . Their case was that the suit land is a part of the Beel called ” Doha Beel”. Plaintiffs claim that Jabbar biswas and others were the C. S recorded tenants of the said Beel. Sadaruddin Mondal and others held the suit land as under tenants. Being the heirs of the said under tenants the plaintiffs got the suit land by way of inheritance and have been in possession thereof. The suit land however
came to be wrongly recorded in names of the defendants. Although they have no right
title or possession therein. This has cast a cloud over the title the plaintiff. Defendant Nos. 1 and 5-9 contested the suit. Their case in short was that Jabbar and others who are the predecessor in interest surrendered the suit land in favour of the original tenants in 1333 B.S . The defendants subsequently got the suit land by means of deeds of transfer and they have since been in possession thereof.
3. Both the trial court and the appellate court on consideration of the facts and circumstances of the evidence on record came to the findings that the plaintiffs failed to prove their alleged title to and possession cf the suit land and that the defendants are in peaceful possession of the suit land on payment of rents. The court of appeal below further found that there was surrender of the under tenancy in favour of the original tenants, as claimed by the defendants. In revision the learned Judge of the High Court Division took the view that the courts below did not consider the material evidence in
arriving at the said findings of fact and thus fell into error of law in dismissing the suit. The learned Judge accordingly set aside the decision of the courts below and decreed the suit against which the defendant appellants obtained leave to appeal before this Division.
4. Mr. Rafique-ul-Huq, learned counsel appearing for the appellants submitted that in
the absence of any error of law or procedure in arriving at the concurrent findings of fact by the first two courts the learned single Judge traveled beyond his jurisdiction in interfering with the decision of the courts below in exercise of his power under Section 115 of the Code of Civil Procedure. He further submitted that the plaintiffs having failed to establish their possession of the suit land with in 12 years prior to the institution of the suit, the suit is barred by limitation as observed to the court of appeal below, but the learned single Judge of the High Court Division failed to consider this in decreed the suit in favour of the plaintiffs. It was also submitted that the learned Single Judge reversed the decision of the Courts below and decreeing the suit without himself considering the evidence adduced by parties. It appears that on the question of possession the learned counsel appearing for the defendant appellants submitted before the High Court Division that there was Istafa (surrender) of the suit land by the fore fathers of the plaintiffs and since then the defendants appellants are in possession of the land. It was submitted that the S.A Khatian was prepared in the names of the defendants and they were paying rent being in possession of the suit land . It was also submitted that both the courts below by concurrent finding of fact came to the decision that the defendants were in possession of the suit land and so the same could not dislodged by the High Court Division in revision. He submitted that no rent receipt was filed by the plaintiff to prove the payment of rent of the suit land and therefore this concurrent finding of facts of the courts below could not be challenged before the High Court Division in revision.
5. The High Court Division it appears reassessed the evidence of P. Ws. and D. Ws in
respect of possession and decided disputed question of fact by holding that the defendants
paid rent on the basis of wrongly S. A record which was under challenge and that the same was done in collusion with the surveyor staff. By decision reported in 42 DLR (AD) 289 this Division held that the finding based on due consideration of evidence was beyond the scope of revision court to interfere. The High Court Division also committed an error in drawing its own conclusion on the question of Istafa. It held that admittedly the suit land was settled with the plaintiff’s fore fathers and therefore unless the
defendants were successful in providing is tafa (surrender) of the suit land, which was the main basis of their pleading they could not get any relief. Here the High Court Division again decided question of fact that the defendants could not establish that there was Isatafa (surrender ) of the suit and by the forefather of the plaintiffs although both the courts below were satisfied from evidence on record what the suit land was surrendered. It has been held in the case referred to above that a surrender of an under tenancy right need not be in writing. It may be inferred from act and conduct of parties as well. The High Court Division therefore erroneously found that the appellants could not prove their claim of Istafa. We are therefore in agreement with the submission made on behalf of the appellant that the High Court Division was in error in deciding and reversing the question
of fact in respect of possession and Istafa (surrender) which were found in favour of the
appellants by the Courts below. The appeal is allowed without any order as to costs.
Ed
Source: I ADC (2004), 329