Appellate Division Cases
(Civil)
PARTIES
Basiruddin……………… Petitioner.
-Vs-
Md. Moslem Uddin and others………………. Respondents.
JUSTICES
Mohammad Fazlul Karim J
M.M. Ruhul Amin J
Judgment Dated: 13th September 2007
The State Acquisition and Tenancy Act, Section 95
Praying for a decree for permanent injunction restraining the defendants from entering into the suit land …………………….(2)
It does not find any acceptable evidence that the defendants repaid the entire consideration money to Nur Mohammad Khan and took back possession of the suit land. The learned Additional District Judge being the final Court of fact has accepted the plaintiffs evidence both oral and documentary and concluded that the plaintiff has proved his prima-facie title and exclusive possession in the suit land. The learned Additional District Judge further held that the defendants could not prove by producing any witness that they repaid the entire amount of consideration money to Nur Mohammad Khan and took back possession of the suit land. The defendants cannot invoke the possession of Section 95 of the State Acquisition and Tenancy Act in the present suit which is not their defence. I do not therefore find any substance in the submission of the learned Advocate
for the petitioner ……………………….(6)
Shahabuddin Ahmed,instructed by NundAdvocate-on-Recordthe Petitioner Senior Islam
Advocate, Bhuiyan, ………………….For the Petitioner.
Syed Mahbubur Rahman, Advocate-on-Record ……………..For Respondent No. 1
For Respondent Nos.2-5 ……………….None represented.
Civil Petition For Leave To Appeal No. 199 of 2006
(From the judgment and order dated the 23rd March, 2005 passed by the High Court
Division in Civil Revision No. 1151 of ‘ 1998).
JUDGMENT
Mohammad Fazlul Karim J: The petitioner, Basiruddin, seeks Leave to Appeal against the judgment and order dated 23.03.2005 passed by the High Court Division in Civil Revision No.l 151 of 1998 discharging the Rule thereby affirming the judgment and decree dated 15.02.1997 passed by the learned Additional District Judge, Rangpur in
Title Appeal No. 141 of 1986 reversing those dated 29.05.1986 of the Munsif, 2nd Court, Sadar, Rangpur, in Other Suit No.354 of 1981.
2. The respondent No.l as plaintiff instituted Other Suit No.3 54 of 1981 in the Court of the then 2nd Munsif, Sadar. Rangpur inpleading the present petitioner and respondent Nos.2-5 as defendants praying for a decree for permanent injunction restraining the defendants from entering into the suit land. On transfer to the Court of the Sadar Munsif the suit was renumbered as C.G. Suit No.311 of 1984. The plaintiff alleged that suit plot No.350 and 379 originally belonged to Bachcha Mia and his son Basiruddin and subsequently Bachcha Mia sold an area of 0.48 acres of land from plot No.350 to one Nur
Mohammad Khan en 04.07.1968 and put him in possession and Basiruddin sold 0.40 acres of land of plot No.379 to the said Nur Mohammad Khan on 09.07.1968 by a registered kabala and delivered possession to Nur Mohammad Khan. The suit plot No.334 as described in Schedule’Kha’ to the plaint originally belonged to Kafiluddin the defendant No.3 who sold 0.24 acres of land of plot No.344 to the aforesaid Nur Mohammad Khan on 27.07.1968 and put him in possession. The suit plot No.97 as described in Schedule’Ka’ to the plaint belonged to one Afanuddin who sold 0.36 acres out of plot No.97 to the said Nur Mohammad Khan and put him possession. Thus, Nur
Mohammad Khan became the owner of the suit land and subsequently died leaving behind 7 daughters namely Rahima Khatun, Ayesha Khatun, Joytunnessa, Khairunnessa, Johora Khatun, Amena Khatun, Hoseneara Begum and one son, Abul Hossain and one wife Rahatannessa who inherited the suit land. The aforesaid legal heirs of Nur Mohammad Khan sold the suit land to the plaintiff on 14.02.1978 at a consideration of TK. 10,000.00 and since purchase the plaintiff has been possessing the suit land. The defendants have no right, title or possession in the suit land but they threatened the plaintiff with dispossession.
3. The defendant Nos.l and 2 contested that suit by filing a written statement contending
that the allegation of transfer of an area of 0.48 acres of land of Plot No. 350 by Bachcha Mia, the late father of defendant Nos. 1 and 2 to Nur Mohammad Khan on 04.07.1968 is not correct and in fact it was an agreement for sale. Bachcha Mia transfen’ed an area of 0.48 acres of land of Plot No.350 at a consideration of TK.400.00 by a registered deed of agreement dated 04.07.1968 with a condition to recovery within 7 years and if the entire
consideration money is repaid and Bachcha Mia refunded the said amount of money to the said Nur Mohammad Khan on 27.11.1971 in presence of defendant No. 1 in front of his grocery shop and took over possession of the land from him and thereafter Bachcha Mia sold the said land to one Abbas on 29.09.1973 for a consideration of TK.3,000.00 and delivered possession to him. Bachcha Mia requested Nur Mohammad Khan to execute a deed of re-conveyance in his favour but without any result. The defendant No.l transferred 0.40 acres of land of Plot No.379 at a consideration of TK.300.00 by a registered deed of agreement on condition of re-transfer by deed dated 09.07.1968 and that on 27.11.1971 the defendant No. 1 refunded the consideration money to the said
Nur Mohammad Khan in front of his grocery shop in presence of defendant No.2 and took over possession of the land in question. The defendant No.l requested Nur Mohammad Khan to execute a deed for re-conveyance in his favour but without any result. Thereafter, the defendant No.l sold 036 acres of land of plot No.379 to one Most. Mursheda Begum wife of Abbas Ali on 21.04.1972 for a consideration of TK. 1,000.00 and delivered possession of the same to the purchaser. Nur Mohammad Khan never acquired any title to the suit land but 0.40 decimals of land of Plot No.3 79 has been in possession of the defendant No.l which is his homestead. The defendants never threatened the plaintiff with dispossession and the suit liable to be dismissed.
4. Mr. Shahabuddin Ahmed, learned Senior Advocate, appearing for the petitioner submited that the trial Court while dismissing the suit found correctly relying on Exts- ‘A’ and ‘B’ that the plaintiff failed to prove his title and possession in the suit land and the D.W.I Motiar Rahman deposed that 0.36 acres of land was sold and Basiruddin has his homestead in 0.40 acres of land in plot No.379 and D.W.2 Abul Hossain duly corroborated the D.W. 1 but the Court of appeal below and the High Court Division without controverting the finding of the trial Court and without noting testimony on record wrongly held that the defendant did not adduce any evidence in respect of their possession and the learned judge of the High Court Division failed to correct the mistake, thus causing miscarriage of justice; that the Courts below failed to consider the registered
deeds of agreement to reconvey the land Ext-‘A’ and ‘B’ and thereby failed to appreciate the legal implication of Section 95 of the State Acquisition and Tenancy Act on the basis of which the defendant’s got back their possession in the land on payment of the consideration money in terms of Exts- ‘A’ and ‘B’ the deeds of reconveyance; that both the Courts of Appeal and revisional Court evidently acted illegally by failing to discuss the
evidence of D.W. 1, D.W.2 and D.W.3 who had only proved Exts. ‘A’ and ‘B’ and the possession of the defendant in the suit land; that the High Court Division has caused miscarriage of justice by ignoring the supplementary affidavit sworn and submitted before it on behalf of the petitioner along with the Annexure-X hereof as evidenced by the Court’s order sheet herein because this appellate Court below found the document torn and could not discover its contents; that the Courts below have acted illegally in decreeing the simple suit for injunction in disregard of clear materials on record including transfer of defendant’s self-same land to Abbas Ali and his wife Morsheda, all showing
complicated question of title and raising important question of defect of party or the plaintiffs alleged possession of the suit land despite absence of credible evidence in support of his possession; that kabala dated July 9, 1968 in respect of 0.40 acres of land plot No. 379 executed by Basiruddin, the defendant No. 1 in favour of Nur Mohammad Khan with registered agreement to reconvey the land vide Ext-B of the same date, the transferee acquired the right to possess the land as a complete unfructuary mortgage and after repaying of the consideration money, the transferor got delivery of possession of the land on November, 27, 1971 and as such, the plaintiff by purchasing the land from the
heirs of Nur Mohammad Khan by kabala dated 14.02.1978 acquired no right, title, interest and possession in the suit land in view of the legal provision.made in Section 95A of the State Acquisition and Tenancy Act; that the kabala dated July 4, 1968 in respect of 0.48 acres of land of plot No.350 executed by Bachcha Mia in favour of Nur Mohammad Khan was done with a registered’ agreement of the same date being Ext-‘A’ providing for reconveying the land and Bachcha Mia having paid back the money and duly obtained possession thereof, the plaintiff by purchasing the land from the heirs of Nur Mohammad
Khan by a kabala dated 14.02.1978 acquired no right, title, interest or possession in the suit land in view of the provision made in Section 95A of the State Acquisition and Tenancy Act.
5. It appears from the record that the contesting defendants did not produce any witness to prove repayment of entire consideration money and delivery of possession of the suit land from Nur Mohammad Khan the predecessor-in-interest of the plaintiff to the contesting defendants. The defendants, therefore, could not discharge the onus that they repaid the entire consideration money of Nur Mohammad Khan and got back possession of the suit land from Nur Mohammad Khan and they also paid rents for the suit land. The learned Additional District Judge noticed that the plaintiff produced their title deed and
examined 3 witnesses who proved plaintiffs exclusive possession in the suit land. The learned Additional District Judge has, therefore, reversed the finding of the trial Court and held that the plaintiff has proved his prima-facie title and exclusive possession in the suit land. The trial Court in a slipshod judgment found that the plaintiff could not prove his title and possession in the suit land without making a correct approach to the pleadings of the parties and the evidence on record. It is not denied that Bachcha Mia and
Basiruddin sold their properties out of suit Plot No.350 and 379 to Nur Mohammad Khan, the predecessor-in-interest of the plaintiff and put him in possession. This clearly suggests that the plaintiff has a prima-facie title and exclusive possession in the suit land. Now the defendants took special plea that the said transfers were with a condition for re-conveyance and that they repaid the entire consideration money and got back possession of the suit land but the defendant is to discharge this onus which has not been claimed.
6. The High Court Division on consideration of the evidence on record held that “it does not find any acceptable evidence that the defendants repaid the entire consideration
money to Nur Mohammad Khan and took back possession of the suit land. The learned Additional District Judge being the final Court of fact has accepted the plaintiffs evidence both oral and documentary and concluded that the plaintiff has proved his prima-facie title and exclusive possession in the suit land. The learned Additional District Judge further held that the defendants could not prove by producing any witness that they repaid
the entire amount of consideration money to Nur Mohammad Khan and took back possession of the suit land. The defendants cannot invoke the possession of Section 95 of the State Acquisition and Tenancy Act in the present suit which is not their defence. I do not therefore find any substance in the submission of the learned Advocate for the petitioner.”
7. In view of the above, we find no substance in the submissions of the learned Advocate for petitioners.
8. Accordingly, the petition is dismissed.
Source : V ADC (2008),426