Appellate Division Cases
(Civil)
PARTIES
Afzal Ahmed and others…………….. Petitioners.
-Vs-
Ayesha Khatun and others………………… Respondents.
JUSTICES
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Judgment Dated: 29th November 2007
The State Acquisition and Tenancy Act Section 87(1) and (2)
Mukku Mia and others-vs-Ali Hossain Bhuiyan and others reported in BCR 1984(AD)61 and BCR1985(AD) 29
The Code of Civil Procedure, Order 41,47 Rule 1,22
EB.S.A. and Tenancy Act, Settion 87(1) praying for a decree declaring plaintiffs’ right, title and interest…………………………. (2)
It appears from The record that no ground has been taken to satisfy the conditions of Order 47 Rule 1 of the Code of Civil Procedure for giving a handle to this Court to review of its judgment and order dated 1O.O7.2OO5. The ground taken in the review application does not come within the requirement of Order 47 Rule 1 of the Code of Civil Procedure. ………………………….(8)
Accordingly, the petition is dismissed. …………………..(10)
A. J. Mohammad AH, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record For the Petitioners Abdul Quayum, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocateon-Record ………………For Respondent No. 13
For Respondent Nos.1-12 and 14-25 ……………………None represented.
Civil Petition For Leave To Appeal No. 133 of2006
(From the judgment and order dated the 20th November, 2005 passed by the High
Court Division in Civil Revision No.475 of 2001).
JUDGMENT
Mohammad Fazlul Karim J: At the instance of the petitioners, this petition for Leave to Appeal is directed against the judgment and order dated 10.07.2005 passed by the High Court Division in Civil Revision No.475 of 2001 discharging the Rule affirming the judgment and decree dated 18.06.2000 passed by the Learned Additional District Judge, 4th Court, Chittagong in Other Appeal No.242 of 1987 dismissing the appeal by affirming and modifying those dated 28.02.1987 passed by the learned Munsif, 5th Court, Chittagong in Other Class Suit No.93 of 1984 dismissing the suit.
2. The plaintiffs-petitioners instituted Other Class Suit No.52 of 1976 in the 3rd Court of Subordinate Judge, Chittagong which was subsequently renumbered as Other Class Suit No.93 of 1984 against the respondents impleading them as defendants praying for a decree declaring plaintiffs’ right, title and interest in the schedule-l(ka) of the suit land and that plaintiffs are entitled to get money in L.A. Case No. 138/67-68 stating, interalia, that the lands comprising 57 chhataks in P.S.Plot No. 1247 both totalling 72 chhataks corresponding to part of R.S. Plot No.2 were purchased by the plaintiff-petitioners from the defendant No.l by a kabala No. 1199 dated 13.03.1961. The plaintiff-petitioners by the above sub-kabala also acquired the right of accretion to the said purchased lands and accordingly the plaintiff-petitioners acquired title to 8 chhataks of south-western part of P.S. PlotNo.737, 17 chhataks of western part of P.S. Plot No.814, 1.30 acres of P.S. Plot No.815, 40 chhataks southern part of P.S. Plot No.816, 6 chhataks of P.S. Plot No.817 and 6.00 acres of P.S. Plot No. 1246 totalling 9.88 acres by a right of accretion. That by virtue of purchase as above the plaintiff-petitioners have acquired title to 72 chhataks and by a right of accretion to 9.88 acres both totalling 10.60 acres showed in the schedule of the plaint. That the plaintiff-petitioners by acquiring title as above have been in peaceful possession of the acquired land of schedule-1 by asserting their own right, title and interest within the knowledge of all including the defendant-respondents candidly and without any interruption from any quarters and by ouster of all concerned and thereby the plaintiff-petitioners acquired the title of the land of schedule-1 by adverse possession.
3. The plaintiff-petitioners alleged that after purchase of the said 72 chhataks of land constructed a ‘Kathi more than 500′ feet long covering the southern side of P.S. Plot No.816 just at a distance of about 400′ feet and to the west at the southern side and about 300′ feet to the west of the northern side of the western boundary of R.S. Plot No.2 by spending huge money in 1961. That after the construction of’Kathi’ in P.S. Plot No.816 the land following to the east of it became fit for cultivation immediately P.S. Plot No. 1246 in contiguous west of the ‘Kathi’ in P.S. Plot No.816. That the plaintiff-petitioners have been catching fish in part of P.S.Plot No. 1246, grass and trees also grow in the P.S. Plot No. 1246 and the plaintiffs used the trees as fuel and the grass for feeding their cattle and that the plaintiffs are in possession of the P.S. Plot No. 1246 in other manners. Though the lands of the schedule-I were not recorded in the name of the plaintiffs in the P.S. Khatian but the plaintiffs acquired title thereto after P.S. operation. The defendant-respondents have no right, title, interest and possession in the schedule-1 lands and for that matter in schedule-l(Ka) lands which is part of schedule1 lands and that schedule-l(Ka) lands have been acquired in L.A. Case No. 138 of 1967-68 from the possession of the petitioners and the petitioners having absolute and exclusive title therein are entitled to the compensation assessed. Out of schedule-1 lands the schedule-l(ka) is the disputed lands which has been acquired by the Government from the possession of the petitioners. This schedule1 (Ka) lands are the western portion of the land of the petitioners. Kharida Kabala described as the western boundary upto the water land of the Bay of Bengal, the accreted lands and that the plaintiffs-petitioners have been in possession of the suit lands by creating ‘Dona’ of catching fishes and then by growing grass with specific boundary demarcating upto the watering portion of the Bay of Bengal on payment of rent to the authority concerned within the knowledge of the respondents and all concerned categorically and peacefully asserting their right, title, interest and possession in this suit lands.
4. Their further case is that the defendant-respondents have got no right, title, interest and possession in the suit land since the date of transfer to these petitioners that he shrewd defendant No.l. bought Partition Suit No.59 of 1968 for 17.73 acres of lands including the plaintiff-petitioners’ kabala lands and the land of schedule-l(Ka) i.e. PS. Plot No. 1246. That the plaintiffs were the defendant Nos. 1 and 2 in that suit and these plaintiffs filed written statement in that suit claiming the land of R.S. Plot No. 1246 and
other lands as well the partition suit was at hearing stage. That the part of P.S. Plot No. 1246 was acquired by the Government for construction of embankment in L.A. Case No. 138 of 1967-68 and money was awarded in the name of these plaintiffs as the plaintiffs have got their right, title, interest and possession in the acquired lands and on enquiry the L.A.. Department found possession of the plaintiffs on the basis of their purchase from the defendant No. 1 by virtue of registered kabala dated 14.03.1961. But the defendant No.l on some false pleas filed an objection in L.A. Case No. 138 of 1967-68 and the defendant No.2 after hearing both the parties failed to take any decision and directed the
parties to file civil suit to determine their right, title, interest and possession of the suit lands by a letter to these plaintiff petitioners vide Memo No.295(3) dated 28.01.1976. That as the Partition Suit No.59 of ‘1968 already pending between the parties, the plaintiffs filed a petition to the defendant No.2 with information that the civil suit for the acquired P.S. Plot No. 1246 and other plots is pending between the parties and as such there is no need of filing a fresh suit for the acquired lands on 14.02.1976. That upon hearing of that partition filed before the L.A. office, Performa-defendant No.l expressed on 25.03.1976 that he already withdrew the P.S. Plot No. 1246 from the schedule of that pending partition suit by a petition, consequently the plaintiff-petitioners got the filing of partition suit in this respect on 26.03.1976 through his concerned lawyer and found that defendant No.l by a petition without supply of any copy to the plaintiff-petitioners’ lawyer obtained an ex-parte order for withdrawal of the P.S. Plot No. 1246, Thus claiming his absolute right, title interest and possession in this plot by practising fraud upon the L.A. Officer and on misleading of facts to withdraw award money in L.A. Case No. 138 of 1967-68 and as such, the plaintiff-petitioner’s cause of action arose for the instant suit on 26.03.1976 when they for the first time came to know about the
withdrawal of P.S. Plot No.1246 from the plaint schedule of Partition Suit No.59 of 1968, before that the plaintiffs who are defendant Nos 1 and 2 in that suit had no knowledge of this withdrawal of the P.S. Plot No.1246 claiming his absolute right, title in the suit lands which creates a cloud on the kharida right, title and interest of the plaintiff-petitioners in the schedule-l(Ka) lands, Accordingly, the defendant No.l is estopped from raising any claim on the suit lands after his sale and delivery of possession of the suit lands to the plaintiff-petitioners since 1961 and that the plaintiff-petitioners having full right, title., interest and possession in the suit lands requires their rights, title, interest and possession to be declared in the schedule-l(Ka) lands to get award in LA. Case No. 138 of 1967-68 and to dispel any cloud on their right, title, interest and possession on the schedule l(ka) lands and that other defendant Nos.4-8 have got no right, title, interest and possession in the suit lands.
5. The defendant Nos.4,5,6 and 8 contested the suit by filing written statement denying the material allegation made in the plaint contending, inter-alia, that the plaintiff-petitioners never purchased any land of the schedule plot on 14 03.1961 or any date and never possessed any land of schedule plot and the kabala dated 14.03.1961 or in respect of schedule land is a forged, collusive, concocted and fabricated kabala. The answering defendants are the owners of the schedule land along with the right, title, ownership and possession over the suit land more than 12 years long before filing of the suit till date. That defendant No. 1 filed baseless Partition Suit No.59 of 1968 in the 3rd Court of Sub-Judge, Chittagong for partition of a vast area of 17.73 acres of land including the khas dakhali lands of these defendants and these defendants contested the said partition suit from the very beginning and in the latest part of the said suit the plaintiffs filed a petition on 25.03.1976 and abandoned his claim in P.S. Plot No. 1246 by excluding it from the schedule of the aforesaid Partition Suit and P.S. Plot No. 1246 with other lands belonged to these defendants and P.S. and B.S. Khatians of the lands recorded in the
names of these defendants as they have been possessing P.S. Plot No. 1246 with other lands from long before filing of that partition suit being No. 59 of 1968 by paying rent to the Government by growing paddy thereon and the plaintiffs of the present suit were made defendants of the said partition suit and they did not appear in the said partition suit and after filing of the present suit collusively with the defendant No.l the plaintiffs filed the written statements in the said partition suit and the present suit has been filed collusively with ill-intention of delaying the payment of compensation money to the answering defendants by the L.A. Department. The plaintiff-petitioners or defendant No. 1 had or has got no right, title, interest and possession in P.S. Plot No. 1246 at any time and the P.S. Plot No. 1246 had and has been in exclusive possession of the answering defendants. for more than 12 years from long before filing the suit and P.S. and B.S. Khatians were recorded in the name of answering defendants and the present B.S. field survey also found the defendants in possession of the suit land and the plaintiff-petitioners filed suit collusively in connivance with defendant No. 1 to harass the defendants and to delay the payment of compensation money to the answering defendant by the L.A. ‘Department and B.S Khatian has been recorded in the names of defendants so the false, baseless, collusive, concocted and illegal suit of the plaintiffs is liable to be dismissed with cost.
6. Mr. A J. Muhammad Ali, learned Counsel, appearing for the petitioners submitted that the High Court Division misinterpreted the President Order No.72 of 1972 and wrongly held that the plaintiffs right to claim accretion on the basis of Settion 87(1) of EB.S.A. and Tenancy Act seems to be barred by law without considering, the case of the plaintiff-petitioners that the suit land had accreted much before coming into force of Section 87(1) and (2) of the State Acquisition and Tenancy Act which is not retrospective in natun; that the High Court Division erred in discharging the rule without considering the relevant laws and decisions enunciated in the case of Mukku Mia and oth-ers-vs-Ali Hossain Bhuieyan and others reported in BCR 1984(AD)61 and BCR1985(AD) 29 in between Jafar All and others vs-Sadak Ali and others and also in 44DLR 465 that since the other appeal No.242 of 1987 of Additional District Judge, 4th Court, Chittagong, was
preferred by the Petitioners impleading respondents and none of the respondents had filed any cross objection as per provision under Order 41 Rule 22 of the Code of Civil Procedure, this Division modifying the judgment and decree of trial Court declaring right, title, interest in schedule property in favour of all the respondents by the impugned judgment and decree committed error of law resulting in the error in the decision occasioning failure of justice and erred in discharging the Rule.
7. We have perused the record of the case, impugned judgment of the Courts below and of the High Court Division. In the facts and circumstances of the case the submission of the learned Counsel of the petitioner together with decision do not have any relevance in the case and accordingly, the same is devoid of any substance.
8. Furthermore, it appears from The record that no ground has been taken to satisfy the conditions of Order 47 Rule 1 of the Code of Civil Procedure for giving a handle to this Court to review of its judgment and order dated 10.07.2005. The ground taken in the review application does not come within the requirement of Order 47 Rule 1 of the Code of Civil Procedure.
9. In view of the above we find no substance in the submissions of the learned Counsel for the petitioners.
10. Accordingly, the petition is dismissed.
Source : V ADC (2008),402