Appellate Division Cases
(Civil)
PARTIES
Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner, Pirojpur and others …………………………….Appellants
Vs
Md. Wazed Ali and others……………………………………….Respondents
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment
9th April 2006
The State Acquisition and Tenancy Act, 1950 (East Bangla XXVIII of 1951), Section 86, 87. Abdul Mannan vs. Kulada Ranjan Mowali 31 DLR(AD) 195.
Seeking declaration of title.
Since the plaintiffs had title prior to diluvion in the land in suit and that as the land in suit alluviated at a time when their title in the land in suit was not affected and that the plaintiffs having had establish that they are in possession of the land in suit then merely because they did not take step for getting the land in suit recorded in their names, their title in the land in suit would not extinguish or in other words they would not be denuded of their title which they had at the time of diluvian and also after alluvion.(10)
ADVOCATES
A. H. M. Mushfiqur Rahman, Deputy Attorney General, instructed by Mvi. Md. Waliidullali, Advocate-on-record For the Appellants.Not represented Respondents.
JUDGMENT
1. Md. Ruhul Amin J :- The appeal by leave is by the defendants against the judgment dated June 22, 1997 of a Single Bench of the High Court Division in Civil Order No. 4901 of 1997 rejecting the revisional application summarily on merit as well as on the ground of limitation since the revisional application was out of time by 238 days and the said delay was not satisfactorily explained.
2. The revisional application was filed against the judgment and decree dated July 16,1995 of the2nd Court of Subordinate Judge (now Joint District Judge) pirojpur in Title Appeal No. 153 of 1993″affirming the judgment and decree dated September 30, 1992 of the Court of Assistant Judge, Nazipur, Pirojpur in Title Suit No. 41 of 1991 decreeing the suit. The suit was filed seeking declaration of title in the land in suit.
3. Plaintiffs case in short, is that land measuring 6.20 acres of No. 23 khebog owned by Daraj Ullah and Nazir Uddin and by amicable arrangement Daraj Ullah used to possess previous plot No. 31/34, that Daraj Ullah died leaving 2 sons Babar and Mobarak, 4 daughters and a widow, that Mubarak died leaving plaintiff Nos. 1-5 that the plaintiffs Nos. 6-10 are the heirs of Daraj Ullah’s another son and daughters, that the plaintiffs acquired the land by purchase from the heirs of Daraj Ullah and possessing the same, that at one time land in suit diluviated but later on alluviated and that the plaintiffs are in possession of the land in suit for about 40 years, that at the time of R. S. record the land was diluvial but during S. A. survey the land became cultivable and on the basis of R. S record the Revenue personnel prepared the S. A. record in respect of the land in suit as diluvial land, that the land in suit is not the khas land of the Government, that the defendant No. 1 i. e. Assistant Commissioner (Land) Nazirpur having had threatened the plaintiffs to evict them from the land in suit the plaintiffs are constrained to file the suit seeking declaration of title.
4. The suit was contested by defendant Nos. 1-4 by filing written statement denying the material averments made in the plaint and stating, inter alia, that the land in suit was never the land of the plaintiffs, that land measuring 66 decimals of plot No. 73 listed in S. A. khatian No. 2 went under water in 1335 B. S and that at the time of preparation of S. A. record the said land was diluvial land and accordingly S. A. record was prepared and that as per provision of section 86 o\’ the State Acquisition and Tenancy Act, 1950 the land in question was listed in khas khatian No. 1, that the suit has been filed by making untrue statements in respect of the land in which plaintiffs have no right, title and interest.
5. The trial Court decreed the suit on the findings that plaintiffs by the evidence of competent witnesses have establish their claim in respect of the land in suit, that the defendant although claimed that part of the land in suit is in the bed of the river but no such case was pleaded in the written statement and as such the evidence of the D. W. 1 in that respect is not acceptable under the law. that D. W. 1 did not substantiate his evidence that part of the land in suit is in the bed of the river referring to any document, that defendants failed to prove that part of the land still is diluvial land and that the land in suit has been alluviated after coming into operation of part-V of the State Acquisition and Tenancy Act or that after promulgation of President’s Order in 1972 and 1973 amending the provision of section 86 of the State Acquisition and Tenancy Act (SAT Act), that plaintiffs have proved their case by the Ext. 1 i. e. kabalas. As against the judgment anci decree of the trial Court the defendant went on appeal. The appellate court on independent consideration of the evidence of the parties arrived at the findings that the plaintiffs arc in possession of the land in suit for about 40 years and they have right, title and interest in the land in suit, that they have established their case by the evidence of competent and reliable witnesses, that they have been able to establish that land in suit alluviated before coming into operation of parti V of the SAT Act, that defendant failed to disprove claim of the plaintiffs in the land in suit, that defendants have failed to prove that the plaintiffs are not in possession of the land and that the land in suit is being managed by the Government, that defendants have not establihsed that the land in suit alluviated after coming into operation of part-V of the SAT Act or that land in suit alluviated after the President’s Orders amending the provision of section 86 of the SAT Act in 1972 and 1973.
6. Thereupon defendants moved the High Court Division in revisional jurisdiction and the High Court Division rejected the revisional application summarily on the finding that plaintiffs have proved that the land in suit diluviated and that although during R. S operation re-appeared but was not fit for cultivation and in that state of the matter the R. S record was prepared showing the land as diluvial land, that the plaintiffs have established that the land in suit alluviated in 1360 B. S and that plaintiffs are in possession since that time asserting their right, title and interest, that defendants failed to establish that the land in suit alluviated after coming into operation of part-V o( the SAT Act or that after the amendment of section 86 of the SAT Act by the President’s Order of 1972 and 1973.
7. Leave was obtained for the consideration of the submissions that the Courts below failed to notice that the land in suit reappeared after 13.5.1958 when Part-V of the SAT Act came into force in the District of Bakerganj and consequent thereupon interest, if any, of the plaintiffs had to the land in suit extinguished and the land in suit vested in the Government, that having regard to the interpretation of this Division as regard operation of the provision of section 87 of the SAT Act in the case of Abul Mannan and others vs. Kulada Ranjan Mowali and others reported in 31 DLR (AD) 195 the High Court Division as well as the Courts below erred in decreeing the suit mechanically in the absence of the facts or evidence before the Court as to the question whether the accretion took place or in other words land in suit alluviated before or after coming into force of Part- v of the SAT Act.
8. The learned Deputy Attorney General submits that plaintiffs neither in his pleading nor in his evidence have stated when the land diluviated. He also submits that had the plaintiffs been in possession of the land in suit prior to the preparation of the S. A recod they would have been diligent or would have taken steps for getting the land recorded in their names or for the correction of the S .A record, but they did nothing, that the lower appellate Court as well as the trial Court were in error in decreeing the suit upon placing reliance on the evidence of P. Ws. 2 and 3 only because of their being aged persons instead of considering the quality of their evidence.
9. The admitted position is that the land in suit diluviated. It is the definite case of the plaintiffs that diluviated land alluviated in 1360 B. S and after alluvion they are in possession of the land in suit. In establishing the said claim one of the plaintiffs figured as P. W. 1 and he has deposed about the case of the plaintiffs. The said P.W. 1 has been corroborated by P. Ws. 2 and 3. The trial Court as well as the appellate Court considered the P.Ws. 2 and 3 as reliable witness and upon considering the quality of their deposition considered them reliable and competent witness. The High Court Division while rejecting the revision-al application concurred with the findings and decisions of the Courts below made on the basis of the evidence on record. The learned Deputy Attorney General could not refer to anything in the evidence of P. Ws. 2 and 3 to consider them as not reliable witness. It may be mentioned defendants tried to put a new case through the deposition of
their lone witness that part of the land in suit is still under water, but there was no pleading in that regard. From the defendant’s side no documentary evidence was brought on record in support of the contention that part of the land in suit is still under water. It is the definite case of the plaintiffs that they are in possession of the land in suit for about 40 years and the fact of their being possession of the land in suit has been proved by the evidence of P. Ws. 2 and 3 who have corroborated the P. W. 1. The contention of the defendants that the land was under water when Part-V of the SAT Act came into operation. This particular fact was required to be established by leading evidence but from the defendant’s side no evidence in support of their case that at the time of publication of S. A. record in 1958 i. e. the date whereof Parti-V of the SAT Act came into operation in the locality where the land situates the land in suit was under water. As the defendants pleaded that at the time of publication of S. A record the land did not alluviated it was their duty to establish the said fact but that was not done. As against the said contention of the defendants that at the time of preparation and publication of S. A record land in suit did not alluviate the plaintiff’s have proved that the land in suit alluviated in 1360 B. S i. e. in 1953 and since then they are in possession. The issue in the suit was when the land in suit alluviated and as such the contention of the learned Deputy
Attorney General that plaintiffs did not plead nor established when the land diluviated is of no merit.
10. The contention of the appellants that had the plaintiffs been in possession of the land in suit at the time of preparation of S. A record they would have certainly taken step for getting the land in suit recorded in their names and they having had not done so logical conclusion is that the land in suit was in the bed of the river when S. A. record was prepared and as such plaintiffs did not take any step for getting the land in suit recorded in their names is not well founded since plaintiffs have proved that they arc in possession of the land since 1360 B. S. and as against that from the defendant’s side no evidence has been brought on record to show that at the time of preparation of the S. A record and that
also when the S. A record was published and thereupon par-V of the State Acquisition and Tenancy Act came into operation in Barisal the land in suit did not alluviate. Since the plaintiffs had title prior to diluvion in the land in suit and that as the land in suit alluviated at a time when their title in the land in suit was not affected and that the plaintiffs having had establish that they are in possession of the land in suit then merely because they did not take step for getting the land in suit recorded in their names, their title in the land in suit would not extinguish or in other words they would not be denuded of their title which they had at the time of diluvian and also after alluvion. In the light of the discussions made hercinabove we find no merit in the appeal. Accordingly the appeal is dismissed. There is no order as to costs.
Source : III ADC (2006), 356.