Appellate Division Cases
(Civil)
PARTIES
The Government of the Peoples Republic of Bangladesh, represented by the Deputy Commissioner. Sylhet and others ………………………….Appellants.
Vs
Sree Subas Chandra Sarker being dead his Judgment heirs: Indira Rani 6 April 2006 Sarke……………………………………………………….. Respondent
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam J
The State Acquisition and Tenancy Act, 1950 Section 20(2).
That in the absence of original deed and that while the certified copy (although certified copy was not produced but photo copy therefore was produced) was not proved by calling the competent witness the High Court Division was in error in decreeing the suit on the view that the certified copy has been produced (8)
The High Court Division was also beret of facts of the case and could not restore the decree of the trial Court without consideration of the evidence on record on merit (8)
ADVOCATES
M.A. Azini Klutir, Deputy Attorney General, instructed by Mr. B. Hossain, Advocate-on-Record For the Appellants. Abdul Wadud Bhuiyan, Senior Advocate instructed by Mr. Fakhrul Islam, Advocateon-Record Respondent .
JUDGMENT
1. Md. Ruhul Amin J:- This is defendants appeal by leave against the judgment dated July 25,2000 of a single Bench of the High Court Division in Civil Revision No. 9824 of 1991 making the Rule absolute and thereupon decreeing the suit. The Rule was obtained against the judgment and decree dated May” 16,1989 of the 2 n d Court of Subordinate Judge (now Joint District Judge) Sylhet in Title Appeal No. 12 of 1989 reversing the Judgment and decree dated December 15,1998 of the Court of Assistant Judge, Sadar, Sylhet in Title Suit No. 102 of 1988 dismissing the same. The suit was filed seeking declaration of title in respect of the land described in the schedule attached to the plaint. It may be mentioned the appellate Court upon reversing the judgment and decree of the trial Court sent back the suit on remand to the trial Court for disposal afresh upon affording opportunity to the defendants to file written statement as well as to allow the parties to lead evidence, if so, chose by them.
2. The suit was filed stating, inter alia, that plaintiff’s father was an employee of Zamindar Birendra Kishore Roy Chowdhury who owned Gouripur Zamindari Estate, Roy Chowdhury who owned Gouripur Zamindari Estate, that said Birendra Kishore Rov Chowdhury being, satisfied with the service of the plaintiff’s father Suresh Chandra Sarkar gifted to him the property in suit on May 31,1958 by the registered deed and put him in possession the property so gifted, that plaintiff’s father Suresh Chandra Sarkar died leaving the plaintiff as the sole heir to inherit the property got by the gift dated May 31.1958 , that his father possessed the gifted property and after him he is in peaceful possession of the land so gifted by the Zamindar, that the defendant No. 5 i.e. local Thashildar taking advantage of the wrong record of right in the name of the Government threatened the plaintiff to dispossess him from the land in suit, that wrong recording of the land in the name of the Government has clouded his title, as such he is constrained
to file the suit.
3. Summons issued in the name of the defendants but the summons in the name of the Additional Deputy Commissioner (Revenue) was returned with the endorsement “refused” Service return in respect of the defendant Court observed that no record of right has been filed by the plaintiff and that the information slip filed in Court has not been proved by competent witness. The trial Court also expressed the view that had the land gifted in 1958 recorded of right prepared subsequent thereto would have certainly been prepared in the name of the plaintiffs father or in the name of the plaintiff, that there is no evidence that on the basis of the deed of gift plaintiff’s father went into possession, that no independent witness has been examined by the plaintiff to prove his case. On the aforesaid finding the trial Court dismissed the suit.
. 4. The Plaintiff went on appeal. The appellate Court on the finding that trial court was in error in taking exception to the filing of certified copy of the deed of gift in that there is averment in the plaint that the plaintiff lost the original deed of szift in 196.1. The observation so made by the appellate Court in our view is not wholly correct in that the plaintiff did not take step to prove the certified copy (although photo copy of the certified copy obtained in 1967 was filed) by calling competent witness and also by calling the register from the officer of the Sub-Registrar. The appellate Court also expressed the view that for mere nonpreparation of the record of right in the name of the plaintiff in respect of the land in suit his title in the land in suit can not be said to have lost. The appellate Court in the background of the observation made by the trial Court as to the manner in which the suit listed for ex-parte hearing ws of the view that the trial Court ought not have taken the suit for ex-party hearing. The appellate Court also noticed the fact that on the date of hearing defendant No. 1 entered appearance and prayed for time, but the trial Court did not dispose of the application so filed seeking time and that took up the suit for ex-parte hearing and thereupon dismissed the suit. In the facts and circumstance of the case the appellate Court was of the view that defendant No.J ought to
have been given opportunity to contest the suit. The appellate Court was of the view that the suit has been disposed of in hot haste. By the trial Court without affording opportunity to the defendant No. 1. The said Court on overall consideration of the facts and circumstances of the case and the submissions made by the Respondent’s Advocate arrived at the finding that for the sake of justice defendants should be given opportunity to contest the suit and thereupon set aside the judgment and decree of the trial Court and sent back the case with the observations as stated hereinbefore to the trial Court. As asainst the order of remand passed by the appellate Court the plaintiff moved the High Court Division in revisional jurisdiction and obtained Rule.
5. The High Court Division upon observing that as the appellate Court did not disbelieve the Ext.l deed of gift and that as the appellate Court has observed that the trial Court was in error in not accepting the certified copy of the deed of gift on the vie that “war’ does not mean only war of liberation of 1971 and that the appellate Court” that the suit ws brought collusively and dishonestly” the appellate Court instead of sending the suit back for affording opportunity to the defendants to contest the suit ought to have decreed the suit. The High Court division also observed “In the instant ease the appellate court believed the deed of gift on the view that ‘war’ does not mean war of liberation of 1971 and that the appellate Court having had revised the finding of the trial Court ” that the suit ws brought collusively and dishonestly” the appellate Court instead of sending the suit back for affording opportunity to the defendants to contest the suit ought to have decreed the suit. The High Court Division also observed “In the instant case the appellate court believe the deed of gift and did not say that the plaintiff has no right, title and possession in the property but it simply said that the defendant ought to have given opportunity” and that “I do not find any reason what opportunity the trial Court will give to the defendant when the land is in possession which was unchallenged” and thereupon held that the appellate Court ought to have “given a judgment without sending the suit on remand’ On aforesaid
6. Leave was granted to consider the contentions that the property in question being non-retainable land of the Zamindar having stood acquired as per provision of Section 20(2) of the State Acquisition and Tenancy Act, 1950 and that as the property continuously possessed by the Government through its employees of the Revenue Department and that as the plaintiff has no right, title and interest in the land in suit and that the land in suit as was a Kacharibari of Gouripur Zamindari Estate and having had vested in the Government on wholesale acquisition of rent receiving interest since April 14, 1965 the High Court Division was in error in decreeing the suit, that the property in question having stood acquired on April 14, 1965, there could not be any question of transfer of the property in suit in 1958 in favour of the plaintiff’s father and as such claim of the plaintiff in respect of the land in suit is baseless, that the suit land has been recorded in the name of the Government in khas khatina No. 1, that trial Court having had held that the plaintiff has failed to prove his title and possession in the land in suit and that the suit was a malafide one and the said finding having not been reversed by the appellate Court,
the High Court Division erred in law in decreeing the suit, that the trial court having disbelieved the alleged deed of gift and the appellate Court having not reversed the said finding with cogent reasons, the High Court Division was in error in making the Rule absolute and thereupon decreeing the suit sitting in revisional jurisdiction in the absence of reliable evidence in support of the title of the plaintiff in the land in suit. observations and finding the High Court Division upon setting aside the judgment of 7. As it seen from the judgment of the the courts below i.e. the trial Court and the appellate Court that the said Court in the appellate Court decreed the suit. ! background of the fats and circumstances of the case and also because of the materials on record having had noticed that the suit I was disposed of for no legally acceptable reason without affording opportunity to the j defendant No. 1 to contest the same, set aside the judgment and decree of trial Court : which dismissed the suit and thereupon sent I back the suit to the Court for disposal upon i affording opportunity to the parties for i leading evidence, if any of them feel and that particularly to affording opportunity to the defendant No. 1 to file written statement and to contest the suit. Although the appellate the appellate Court made certain observation about the manner of disposalof the suit by the trial Court and also of taking exception by the trial Court as to filing of the certified copy (in fact plaintiff filed photo copy of the certified copy of the deed of gift but ultimately did in fact not make any decision about the acquisition of title by the plaintiff on the basis of the The party who intends to file photocopy of the document for one or more reasons would be required to obtained permission of the Court to that effect and such party would be required to give under taking he would produce the original document whenever directed by the Court.
7. The learned Deputy Attorney General submits that when there was no reliable evidence before the High Court Division to arrive at a finding as to the right, title and possession of the plaintiff in the land in suit, the said Division was in serious error in decreeing the suit. The learned Counsel for the Respondent in the background of the facts and circumstances of the case felt difficulty to support the judgment of the High Court Division and thereupon made submission that for ends of justice the suit may be sent back to the trial Court and thereby none of the parties would be prejudiced. The submission so made reflects the justification of the order of the appellate Court in sending back the suit to the trial Court. It is seen from the judgment of the High Court Division that the said Division making the Rule absolute has placed reliance on the decision in the case of Perusal Rani Sen Gupta Vs. Bangladesh reported in (1983) III BLD(AD) 277″wherer in it has been observed “Where there has been no appeal by the defendant- respondent against the decree of the first appellate court, nor even any cross objection, it has been a gratuitous order by the High Court Division setting aside the judgment and decree of the first appellate court, nor even any cross objection, it has been a gratuitous order by the High Court Division setting aside the judgment and decree of the first appellate court and dismissing the suit while hearing the appeal preferred by the plaintiff appellant.” The aforesaid observation was made in the background of the fact that plaintiff’s suit for declaration of title and permanent injection was decreed by the trial Court on certain facts stated by the plaintiff. Thereupon the defendant took an appeal and the appellate Court dismissed the appeal. The appellate Court while dismissing the appeal made certain adverse finding as regard the settlement claimed by the plaintiff. The defendant did not take any appeal. The plaintiff appellant being aggrieved by the finding of the lower appellate Court preferred appeal before the High Court Division. The appeal was dismissed by the High Court Division without any finding as to plaintiff’s title and possession. It appears from the reported case the High Court Division dismissed the suit without determining the question raised against adverse finding of lower appellate Court. In the background of the aforesaid state of the matter observation as mentioned e was made by the Appellate Division. In our view the decision so referred to by the High Court Division while making the Rule absolute had no relevancy to the facts and circumstances of the instant case. The learned Deputy Attorney General in support of his submission that in the absence of original deed and that while the certified copy (although certified copy was not produced but photo copy therefore was produced) was not proved by calling the competent witness the High Court Division was in error in decreeing the suit on the view that the certified copy has been produced has referred to the case of Bangladesh, represented by the Secretary, Ministry of Housing and Public Works and another Vs. Shirely Anny Ansari reported in 52 DLR(AD) 180 wherein it has been held “
The production of the original deed of gift by the donee and other documents such as mutation paper, municipal record would have indicate that the same has been acted upon. But neither the original deed of gift nor the original lease deed of Dr. Ansarinor any mutation paper nor any municipal record have been produced to prove the claim of the respondent. In view of the aforesaid we hold that the High Court Division misdirected itself in holding that when there was a registered deed of gift the respondent has a genuine and strong claim over the property”. The learned Deputy Attorney General has also referred to the case of Chitta RanjanChakraborty being dead, his heirs Ashish Chakraborty and others Vs. Md. Abdur Rob Alias Mvi. Md. Abdur Rob reported in 49 DLR(AD) 96 wherein it has been observed ” From a perusal of the judgments pronounced by the courts below it is clear to see that the appellate Court which ws the final court of fact did not give its decision on the merit of the case on the evidence on record while sending back the case on the evidence on record while sending back the case on remand. Therefore the High Court Division was also beret of facts of the case and could not restore the decree of the trial Court without consideration of the evidence on record on merit.
8. It has already been mentioned that the lower appellate Court in the background of the facts and circumstances of the case did not arrive at any definite finding as to the title of the plaintiff. It may also be mentioned there was no reliable and independent witness to prove the claim of the plaintiff and his possession in the land in suit on the basis of the deed of gift. In that state of the matter we are of the view High Court Division ws in error in decreeing the suit while there was no reliable evidence to arrive at a finding as regard the title and possession of the plaintiff in the land in suit, he trial Court took notice of the fact that plaintiff’s claim that the land in suit was gifted to his father in May, 1958 but record of right was not prepared in the name of the plaintiff’s father and no step was taken to have the record of right prepared or corrected either in the name of plaintiff’s father or in the name of the plaintiff. Be that as it may these are the matters to be considered by the trial Court at the time of hearing of the suit afresh and the parties would be at liberty to establish their respective case by leading evidence as has been directed by the lower appellate Court. In the background of the discussions made herein before we find merit in the appeal. Accordingly the appeal is allowed. There is no order of costs.
Source : III ADC (2006), 365.