Bhulu Miah and others Vs. Begum shakhina Khatun and others

Appellate Division Cases

Civil

PARTIES

Bhulu Miah and others ………………………………..petitioners.

-vs-

Begum shakhina Khatun and others………………….. Respondents.

JUDGES

Syed J.R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

Date of Order

11th May 2005

For declaration of title and recovery of khas possession Lower appellate Court rightly sent the case on remand to the trial Court for ascertaining the claim of the parties on the basis of their respective original deeds after determining their genuineness and as such the High Court Division ought to have remanded the case to the trial Court for deciding the matter in controversy between the parties. So the findings and decisions of the High Court Division can not be sustained in law (5)

High Court Division without giving emphasis upon the observation of the lower appellate Court that the plaintiffs in order to prove their case did not produce the original deed for which proper evidence was required to be taken and as such the trial Court was the proper Court to decide the Civil petition for leave to Appeal No.325 of 2005

(From the judgment and order dated 1st February, 2005 passed by the High Court Division in Civil Revision No. 1806 of 2004) title on the basis of the evidence and as such the High Court Division committed an error of law resulting in an error in the decision causing failure of justice in not sending the case on remand to the trial Court for proper adjudication in accordance with law (5)

ADVOCATES

A. /. Mohammad Ali, Senior Advocate, instructed by Zainul Abedin, Advocate-on Record For the Petitioners Moshiuzzaman, Advocate, instructed by Md. Nawab Ali, Advocte-on-Record For the Respondents

ORDER

1. Syed J. R. Mudassir Husain,CJ : The defendant petitioners are seeking leave against the judgment and order dated 1st February, 2005 passed by the High Court Division in civil Revision No. 1806 of 2004 making the Rule absolute by sending the suit back to the lower appellate Court on remand.

2. The predecessor of the petitioners namely Abul Bashar as plaintiff filed Title Suit No.45 of 1995 in the Court 1st Court of the Senior Assistant Judge, Gazipur for declaration of title and recovery of khas possession of .09 acres of land as mentioned in the schedule of the plaint, alleging, inter alia, that land comprising of 6.24 acres of land including the suit land originally belonged to one Rajesh Chandra Mondal and his name was correctly published in S. A. record. Rajesh Chandra died leaving behind his son Sree Bidhu Bhusan Mondal as only heir who on 24-051968 sold entire land of 6.24 acres by sale deed No.8855 to the plaintiff. After purchase the plaintiff possessed the suit land by mutating his name in the record of right and paid the rents and thereafter the name of plaintiff was correctly published in R. S. record. The plaintiff use to reside in Dhaka, so he appointed A Jalil as the caretaker who cultivates the land and give half of the crops; that five years ago defendants requested the plaintiff to allow them to live in the house situated on the suit land; that plaintiff accepted their request as a result the defendants have been living in the plaintiffs house. In the year 1994 plaintiff decided to establish a brick Kiln over his purchased land measuring 6.24 acres of land including suit land and for that reason plaintiff requested defendants to leave to house but the defendants not only refused but threatened the plaintiff.

3. The defendant-respondents contested the suit by filing written statement denying material allegations made in the plaint and contended, interalia, that the suit is barred by limitation and not maintainable and the plaintiff is estopped by the principles of waiver and acquiescence. The defendant-respondent’s further case was that Ram Behari Mondal was the owner of suit land along with other land and his name was correctly recorded in C. S. record, subsequently Rejendra Chandra Mondal owned the land and his name was correctly ecorded in S. A. record. On 08-011918 Rajendra Chandra Mondal sold 4.54 acres of land including the suit land to Isamuddin (father of the defendants) by registered

sale deed No. 185. While Isamuddin had been owning and possessing the suit land he died leaving behind defendants. In absence of original deed defendants collected a certificate, that the balam book kept in the Sub-Registrar Office has been burnt; that the plaintiffs have no deed in respect of suit property, if produced would be deemed ineffective and not binding upon the defendants as false deed creating no title, interest in favour of the plaintiff; the defendant having been in possession of the suit land for more than 12 years through their predecessors acquired title in their favour and as such the suit is liable to be dismissed.

4. The trial Court decreed the suit by judgment and decree dated 20-06-1999 holding that R. S. khatian stands in the names of plaintiffs and defendants being permissive purchaser

of the plaintiffs are to handover possession of kha schedule land in favour of the plaintiffs within 45 days from date. Against which the defendants filed Title Appeal No.74 of 1999 and the appeal was heard by the Joint district judge, Second Court, Gazipur, who by allowing the appeal by his judgment and decree dated 27-04-2004 set aside the judgment of the trial Court and remanded the suit back on remand to the trial Court for retrial in the light of observation made therein. Against the aforesaid judgment of reversal, the plaintiffs filed Civil Revision No. 1806 of 2004 and learned Single Judge of the High Court Division upon setting aside the judgment and decree of the lower appellate Court sent the suit back to the lower appellate Court on remand with a direction to dispose of the within 3 months from the date of receipt of the impugned judgment of the High Court

Division.

5. Mr. A. J. Mohammad AH, the learned counsel appearing for the petitioners, placed before us the impugned judgment of the High Court Division as well as the judgment of the Courts below and thereafter contended that the High Court Division having sent the case back to the lower appellate Court on remand instead of trial Court, to dispose of the appeal in accordance with law and in the light of obsevation made therein but making observation regarding claim of .09 acres of land out of 4.54 acres of land of the original deed of the defendants by the plaintiff and the original

deed of the plaintiff, committed error of law in making the ule absolute resulting in a error in the decision causing failure of justice. He thereafter argued that the lower appellate Court rightly sent the case on remand to the trial Court for ascertaining the claim of the parties on the basis of their respective original deeds after determining their genuineness and as such the High Court Division ought to their genuineness and as such the High Court Division ought to have remanded the case to the trial Court for deciding the matter in controversy between the parties. So the findings and decisions of the High Court Division can not be sustained in law. Learned Counsel further contended that the High Court Division without giving emphasis upon the observation of the lower appellate Court that the plaintiffs in order to prove their case did not produce the original deed for which proper evidence was required to be taken and as such the trial

Court was the proper Court to decide the  basis of the evidence and as such the High Court Division committed an error of law resulting in an error in the decision causing failure of justice in not sending the case on remand to the trial Court for proper adjudication in accordance with law.

6. Mr. Moshiuzzaman, the learned Counsel appearing for the respondents, has however

tried to support the impugned judgment of the High Court Division. 7. However, in our view, the points raised by the learned Counsel for the petitioners deserve consideration. Leave is, accordingly, granted.

8. Security of Tk.1000/- is to be deposited within 1 (one) month. Preparation of paper book is dispensed with as prayed for.

9. Stay granted earlier be extended for further period of 6 (six) months from date.

Source: III ADC (2006) 914

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