Appellate Division Cases
(Civil)
PARTIES
Badal Chandra Das and others ………………….Appellants
-Vs-
Amena Khatun ……………………….Respondent
JUSTICE
Mohammad Fazlul Karim J
M.A. Aziz J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 5th April 2005.
Suit for declaration of title and recovery of possession alleging that the defendant to be in possession on permission from the owner since 1336 B.S. and no paper, no rent receipt or any other tangible paper/document could be showing in support of their possession in the suit land on the count……………..(9)
The defendant though claimed that they were on permissive possession in the suit land from Seroogi, the original owner of the suit land since 1936 but could not produce any material document or rent receipt to substantiate their claim of permissive possession of original owner Seroogi. The plaintiff filed the suit for declaration of title and recovery of possession and under the circumstances they could get a declaration of title against the defendant on the basis of their documents. The plaintiff having filed all the material documents showing the title to the suit land including the Khatian being an evidence of possession as well as collateral evidence of title, was entitled to recovery of possession from the defendant, who under the circumstances, go to show that was in permissive possession in the suit
land as asserted by the plaintiff………………(10)
Civil Appeal No.68 of 2004 (From the Judgment and Order dated 12th November 2002 passed by the High Court Division in Civil Revision No.2468 of 2001)
A. J. Mohammad Ali, Senior Advocate, instructed by Md. Aftab Hossain, Advocateon-
Record …………….For the Appellants
Sultan Ahmed, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record……
For the Respondent.
JUDGMENT
1. Mohammad Fazlul Karim J. This appeal by leave is directed against the judgment and order dated 12 November 2002 passed by the High Court Division in Civil Revision
No.2468 of 2001 discharging the Rule issued against the judgment and decree dated
11.01.2001 of the Subordinate Judge and Artha Rin Adalat, Rajshahi in Title Appeal No. 130 of 1999 reversing those dated 28.02.1999 by the Senior Assistant Judge, Sadar, Rajshahi in Other Class suit No. 265 of 1996 dismissing the suit.
2. The respondent as the plaintiff instituted the suit for declaration of title and recovery of khas possession in respect of the suit land stating, inter alia, that the suit land measuring 04 acres from Plot No. 50 in old Khatian No. 723, .03 acres from Plot No. 49 in Khatian
No. 722, .02 acres from Plot No. 32 in Khatian No. 543 and .03 acres from Plot No. 84 in Khatian No. 763 total measuring .12 acres originally belonged to Uttam Sardar, Uday Sarder, Khirod Baisnab and Basanta Kumari Baishnabi; from whom Rama Proshed Seroogi took the said land and thereafter settled the same in favour of Dil Mohammad in the year 1351 B.S. in the month of Kartik; the suit land is situated with in the Rajshahi City Corporation area; in the year 1354 B.S. the said Rama Proshad intended to sell the suit land and accordingly received Tk. 6,000/- from Dil Mohammad but before registration he left for India; that Dil Mohammad is enjoying the suit land since 1351 B.S. and S.A. Khatian No. 635 has been recorded in his name and he paid rents accordingly; defendants (appellants herein) predecessor Sudhir Chandra was known to the plaintiff-respondent and on his request he was allowed to reside a protion of the suit land; during liberation period said Sudhir Chandra left this country for India; Dil Mohammad transferred the suit land to his wife plaintiff-Amena Khatun (respondent herein) through registered deed of sale in return of dower money on 15.12.1967 and accordingly mutated her name in mutation Case No.793/IX/7576 dated 22.1.1976; Sudhir Chandra paid rents to the palintiff-respondent at Tk. 75/- per month since 1974 to January, 1985; since they had a good relationship he did not give any rent receipt for the same; on the apprehension of eviction said Sudhir Chandra filed Other Class Suit No.81 of 1986 and the said suit was dismissed on contest on 26.4.1994; the plaintiff-respondent herein filed S.C.C. Suit No.2 of 1989 for eviction; in the said suit the defendant claimed title as care-taker on behalf of Rama Proshad since 1959 and according the suit was dismissed on contest on 16.3.1996 and thereby plaintiffs title became clouded and hence the suit.
3. The defendant-appellants contested the suit stating, inter alia, that Rama Prashad Seroogi obtained the suit land measuring .12 acres from Uttam Sardar, Uday Sardar, Basanta Kumari Baisnab and Khiroda Baisnab; said Rama Proshad Seroogi entrusted the predecessors of the appellant Sudhir Chandra Das to look after the properties, acordingly he started residing thereon since 1936 with the consent of said Rama Prashad Seroogi; he regularly paid rent of Tk. 15/- to said Sudhir Chandra Das; lastly in the year 1965 said
Rama Proshad transferred the said land in favour of Sudhir Chandra Das and accordingly he constructed dwelling house thereon and died in the year 1994; in the year 1964 the then Government requisitioned the suit land for the business of country made wine; that against whereof said Sudhir Chandra put objection in Miscellaneous case No. 137/6364 and which was dismissed and against whereof he preferred Appeal No. 11 of 1964 before the Divisional Commissioner and by order dated 10.9.1964 the requistion proceedings was withdrawn and his right and title became established; thereafter S.A. Khatian was finally published correctly into his name; the fact of objection case No. 31 is false; the plaintiff-respondent on creating a forged document previously filed S.C.C. Suit No.2 of
1989 against the appellants for eviction as tenant and lost there; the suit is false and is liable to be dismissed.
4. The trial Court dismissed the suit and on appeal the same was decreed. The defendant-appellant unsuccessfully moved the High Court Division.
5. Leave was granted to consider as under: “Mr. A.J. Mohammad Ali, the learned counsel appearing for the petitioners submitted that the plaint case being that the defendant was a permissive possessor under him but there being no evidence led to prove the same, the High Court Division erred in affirming the decree passed by the appellate court on the untenable view that the continuous uninterrupted possession of the plaintiff proves that he is owner of the property learned Counsel further submitted that the suit being a suit for declaration of title and recovery of khas possession, the High Court Division erred in holding that “In this particular case the opposite parties plaintiffs have long uninterrupted possession and also have Dakhila and the rent receipts thus follow the title.”
6. Mr. A.J. Mohammad Ali, the learned Counsel appearing for the appellants submitted that the plaint case being that the defendant was a permissive possessor under him but there being no evidence led to prove the same, the High Court Division erred in affirming decree passed by the Court of appeal below on the untenable view that the continuous uninterrupted possession of the plaintiff proves that he is the owner of the property.
The learned counsel further submitted that the suit being a suit of declaration of title and recovery of khas possession, the High Court Division erred in holding that in this particular case the plaintiffs have long uninterrupted possession and also have Dakhilas and the rent receipts thus follow title and consequently erred in affirming the decree passed by the appellate court without proof of title or possession by the plaintiff. The learned Counsel further submitted that the High Court Division found that the plaintiff could not prove his pattan as well as his rent receipt from the ex-landlord which also did not find favour of the learned Judge in S.C.C. Suit No.2 of 1989, consequently the plaintiff in any way manner nowhere could be able to prove his title and for the weakness of the defendant, the plaintiff cannot succeed in the suit, the High Court division totally failed to consider that aspect of the case and decreed the suit on mere presumption thereby erred in law.
7. Mr. Sultan Ahmed, the learned Counsel appearing for the respondents has, however, submitted that the appellants have not incorporated in the paper book the copy of pattani
Dakhilas marked Exhibits 1 and 1(1) series in the lower appellate Court in Title Appeal No. 130 of 1999 which are exhibits ‘Ka’ and ‘Ka(l)’ series of the Third Court in O.C. Suit
No. 81 of 1986 (Shree Sudhir chandra Das Vs. Amena Khatun) of the Zamindari period showing payment of rent to the Zaminder by Dil Mohammad himself for the year 1351
B.S. on 5.7.1351 BS Ext.l(l) and for the years 1354 B.S., 1353 B.S. and 1352 B.S. on
8.8.1354 B.S. (Ext.l) showing their continuous possession following title in the disputed land and though in the paper it is mentioned about the incorpration of Exhibits 1-1(1) series yet non-incorporation of the same by the appellants in the paper book has become misleading, erroneous and incomplete affecting the decision seriously to the prejudice of the respondent. The learned Counsel further submitted that the reason that the deposition of Shree Sudhir Chandra Das, the predecessor and father of the appellants who was examined as P.W.I in Other Class Suit No. 81 of 1986 (Shree Sudhir Chandra Das Vs. Amena Khatun and others) in the Court of Senior Assistant Judge, Additional Court No.l, Sadar Rajshahi who is a very vital and material witness has not been incorporated in the paper book to the serious prejudice of the respondent and the paper book is misleading, defective and incomplete which is liable to be discarded for the ends of justice.
8. On perusal of the judgment of the trial Court it appears that the learned Assistant
Judge has not at all considered the case of the respondent while dismissing the suit but on the contrary, erroneously held that as S.A. Khatian No. 635 has not been recorded in the name of Dil Mohammad, the husband of the plaintiff-respondent, as such the plaintiff could not have any right, title and interest in the suit land.
9. The plaintiff though filed the suit for declaration of title and recovery of possession alleging that the defendant to be in possession on permission from the owner since 1336 B.S. and no paper, no rent receipt or any other tangible paper/document could be showing in support of their possession in the suit land on the count.
10. It is in evidence of the defendant that they left the suit land in 1971 and again after liberation they came to the suit land and has been residing therein. The plaintiff, however, though claimed possession on the basis of agreement for sale and accordingly filed the S.A. Khatian standing in the name of Dil Mohammad as R.S. Khatian in the name of plaintiff. The defendant, however, filed the suit being Other Class Suit No. 81 of 1986 wherein the defendant as P.W.I admitted that S.A. Khatian No. 635 in respect of the suit land has been prepared in the name of Dil Mohammad, thousgh was objected to but he did not pursue the said objection and that he has not paid any rent or taxes in respect of the suit land. The defendant though claimed that they were on permissive possession in the suit land from Seroogi, the original owner of the suit land since 1936 but could not produce any material document or rent receipt to substantiate their claim of permissive possession of original owner Seroogi. The plaintiff filed the suit for declaration of title and recovery of possession and under the circumstances they could get a declaration of title against the defendant on the basis of their documents. The plaintiff having filed all the material documents showing the title to the suit land including the Khatian being an evidence of possession as well as collateral evidence of title, was entitled to recovery of possession from the defendant, who untler the circumstances, go to show that was in permissive possession in the suit land as asserted by the plaintiff.
11. The Court of appeal below on consideration of the evidence on record has decreed the suit and the same was affirmed by the High Court Division. No infirmity in the judgment of the High Court Division could be pointed out for our interference.
12. In that view of this, the appeal is dismissed without any order as to costs.
Ed.
Source: IV ADC (2007), 228