Appellate Division Cases
(Civil)
PARTIES
Divisional Forest Officer, Dhaka…………………. Appellant.
-VS-
Md. Shahabuddin and others……………….. Respondents
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Joynul Abedin J
Judgment Dated: 21st March 2007.
The Specific Relief Act, Section 42
The question that falls for consideration is whether the learned Single Judge was correct in law in dismissing the preset suit for the reason that there was no prayer in the plaint for declaration of title and recovery of khas possession in the suit land and’ also for defect Of party in that the Deputy Commissioner,’ Gazipur representing the Government was required to be implead as the plaintiff in place of the Divisional Forest Officer, Dhaka Division ……………………………………(10)
In the present case, the aforesaid gazette notifications have vested the government in the Ministry of Forest with the right, title and interest in the suit land and with the subsistence of these two notifications the government in the Ministry of Forest still continues to have the right, title and interest in the suit land. Hence there was no legal requirement for the plaintiff to make a prayer for declaration of title to the suit land. Similarly, since it is asserted in the plaint that the plaintiff has been maintaining its possession and control of the suit land it was also not necessary for the plaintiff to incorporate a prayer in the plaint for recovery of khas possession. In this view of the matter, the learned Single Judge in the High Court Division fell into an error in dismissing the suit as not maintainable on the ground that the plaintiff did not ask for declaration of title and recovery of khas possession of the suit land. Similarly, we also do not agree with the learned Single Judge that the present suit suffers from defect of party for failing to implead the Government as plaintiff instead of the Divisional Forest Officer, Dhaka Division, rendering the suit liable to be dismissed on that account in view of section 99 of the Code of Civil Procedure. This has been a case of mere misdescription of the plaintiff. Such misdescription of the plaintiff can at best be taken to be a technical defect and it should not be allowed to defeat the ends of justice…………………. (12)
A.H.M. Mushfiqur Rahman D.A.G, instructed by B. Hossain Advocate-on-Record……………………………… For the Appellant
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Md. Aftab Hossain,
Advocate-on-Record. ………………………. For Respondent Nos. 1-6
For Respondent No.7…………………..Not Represented
Civil Appeal No. 188 of 2000
(From the judgment and order dated 10.6.1998 passed by the High Court Division in Civil Revision No. 1568 of 1997.)
JUDGMENT
Md. Joynul Abedin J: This appeal by leave is directed against the judgment and order dated 10.6.1998 passed by a Single Bench of the High Court Division in Civil Revision No. 1568 of 1997 discharging the rule issued against the judgment and decree of the learned Additional District Judge, Gazipur passed in T.A. No.113 of 1992 setting aside the judgment and decree passed by the learned Senior Assistant Judge, 2nd Court, Gazipur in T.S. No. 10 of 1992 decreeing the suit.
2. The appellant as plaintiff filed T.S. No. 78 of 1990 in the Court of the learned Senior Assistant Judge, Gazipur which was subsequently renumbered as T.S. No. 10 of 1992 in the 2nd Court of the Additional Assistant Judge, Gazipur for declaration that T.S. No.308 of 1973 and the ex-parte decree obtained therein by the defendant No.l, Gopal Baroi, is forged, fabricated, collusive, void and not binding upon the plaintiff on the allegations that the suit property comprising 11.55 acres of land as described in the schedule to the
plaint originally belonged to the Zaminder of Kashimpur and accordingly the C.S. Khatian was prepared in the name of the said Zimander. The government by virtue
of two different notifications dated 15.12.1953 and 31.3.1985 published in the official Gazette vested the suit land in the Forest Department of Government. Since then the Forest Department of the i Government has been looking after and managing the same S.A. and R.S. Khatian was therefore prepared in the name of the Forest Department. The defendant Nos.2 and 3 by creating some forged documents of the suit land filed T.S. No. 29 of 1984 in j the Court of the Assistant Judge, Kaliakoir, Gazipur for declaration of their I title therein. The said suit was dismissed on 30.4.1986 on contest but on appeal was preferred against the aforesaid order of dismissal. Defendant Nos. 2 and 3 then with a view to grabbing the suit land created a forged and collusive ex-parte decree dated 3.4.1977 in T.S. No.308 of 1973 of the court of Munsif, 2nd Court, Dhaka in favour of defendant NO.l, Gopal Baroi. The plaintiff appellant thereafter having come to know about the said ex-parte decree in T.S. No.308 of 1973 submitted in 19.3.1990 an information slip to the Sheristader of the said 2nd Court of Munsif, Dhaka now Gazipur to inform as to whether any suit being T.S. No. 308 of 1993 was ever filed by the defendant No. 1 Munsif, 2nd Court, Dhaka now Gazipur thereupon informed in writing on 25.3.1990 that no such suit was filed as the relevant suit register did not show filing
of such a suit in the court of Munsif, 2nd Court, Dhaka.
3. Defendant Nos. 2.-7 contested the suit contending that the suit was not maintainable
an it was also barred by limitation. The said defendants claimed that the suit land originally belonged to Zaminder of Kushimpur and the C.S. record was prepared accordingly. Defendant No. 1, Gopal Baroi, took settlement of the suit land from the said Zaminder and he was in possession of the same on payment of rent. But the S.A. Khatian was wrongly prepared in the name of the Government for which the defendant No.l as plaintiff instituted T.S. No. 308 of 1973 in the court of Munsif, 2nd Court, Dhaka and it was decreed ex-parte on 18.8.1974 declaring the title of the defendant No. 1 in the suit
land. Thereafter, the defendant No.l as plaintiff instituted T.S. No. 29 of 1984 in the Court of Assistant Judge, Kaliakair, Gazipur for permanent injunction against the government and the suit was dismissed for some defects but the said dismissal did
not affect the right, title and interest of the defendants in the suit land. Subsequently,
defendant Nos.2 and 3 purchased a part of the suit land by registered kabala dated
28.12.1983 from the defendant No.l. Defendant No.l also transferred 2.4 acres of land to one Abdul Awal who in his turn transferred the same to defendant No.7 by registered kabala dated 10.10.1983. Defendant Nos. 2-3 and 7 are thus in possession of their purchased land after getting their names mutated on payment of rent to the Government. Defendant Nos. 2 and 3 and 7 subsequently sold some land to the defendant Nos. 4-6 by a registered kabala Defendant Nos.2 and 3 are in possession of their purchased land after constructing a two-storied building in a portion of the suit land and also by cultivation
of the remaining land. The plaintiff has no right, title, interest and possession in the
suit land and the gazette notification in the name of the Forest Department of the Government is illegal as it was never acted upon and the suit is liable to be dismissed.
4. The learned Assistant Judge after con sideration of the evidence and materials on record decreed the suit. Defendant Nos. 2 and 3 thereafter preferred T.A. No. 113
of 1992 and the learned Additional District Judge, Gazipur upon hearing the appeal allowed the same and set aside the judgment and decree of the learned Assistant Judge dismissing the suit on the ground that the suit was not maintainable as farmed as there was no prayer for declaration of title and recovery of khas possession and that the suit was also bad for defect of parties. The learned Additional District Judge while dismissing the suit as above also held that the plaintiff became the owner of the suit land in view of the said gazette notifications, Exts 1 and l(a) and the same have not yet been set aside or
rescinded; but the right, title and interest of the Government over the suit land extinguished because of the mutation of the names of the defendant Nos. 2 and 3 and others on record and receipt of rent from them by the Thana Revenue Officer.
5. The plaintiff appellant thereafter preferred a revisional application before the High Court Division and the learned Single Judge of the High Court Division discharged the rule affirming the judgment of the learned Additional District Judge to the extent that the suit, as framed, is not maintainable in the absence of any prayer for declaration of the title and recovery of khas possession and also for defect of parties while disapproving the finding that the right, title and interest of the government acquired by virtue of the said notifications were extinguished because of the mutation of the names of the said defendants and receipt of rents from them by the concerned authority in the Government.
6 The leave, thereafter, was granted to consider whether, in the facts and circumstances
of the case, the learned Single Judge of the High Court Division acted in accordance with law in dismissing the present suit by discharging the rule in the aforesaid civil revision on the ground that the suit was not maintainable in the absence of any prayer for declaration of title and recovery of khas possession and the suit was also bad for defect of parties in view of section 99 of the code of Civil Procedure.
7. In the present case, the plaintiff has asserted in the plaint that the suit land has vested in the Forest Department of the Govemment as reserved forest in view of the Gazette notifications dated 15.12.1953 and 31.3.1985 and the Forest Department has been in control and possession of the same. It is also asserted by the plaintiff that the defendant Nos. 2 and 3 filed Title Suit No. 29 of 1984 for declaration of title to the suit land and the same was dismissed on contest. But the said defendants did not prefer any appeal against the aforesaid judgment of dismissal and instead sought to claim their right, title and interest in the suit land on the basis of spurious judgment and decree passed in Title Suit No. 308 of 1973 allegedly filed by the defendant No.l but in fact there was no such suit filed by the defendant No.l and no such decree was obtained by him (defendant No.l) and the said judgment and decree being spurious were not binding on the plaintiff.
8. It is noticed that the aforesaid gazette notifications have not yet been challenged
and set aside by any court of law. By virtue of these two notifications the Govemment in the Ministry of Forest has acquired right, title and interest in the suit land which still subsist. In this view of the matter, the fact of mutation of the names of the defendants and the receipt of rents from them by the Thana Revenue Officer will not extinguish the right, title and interest of the government in the suit land so long the said notifications subsist. This state of affairs is further bolstered and reinforced by the fact that T.S. No.29 of 1984 filed by the defendant No.l against the government was admittedly dismissed on contest meaning that the possession and the prima facie title in the suit land is with the government. The learned Single Judge, although dismissed the suit by discharging the rule, held the same view as under:
“The suit land as admitted vested in the Forest Department of the Government of Bangladesh as per Gazette Notifications exhibits 1 and l(a) and these notifications have not been cancelled or rescinded and as such it can not be said that the right, title and interest of the Government over the suit land had been extinguished merely because the Thana Revenue Officer, i’uiiganj, Gazipur mutated the suit land in the name of the defendant Nos.2 and 3 and others and realised rent from them.”
9.The learned Single Judge of the High Court Division while concurring with the finding of the trial court that the plaintiff appellant succeeded in proving that the judgment and decree passed in Title Suit No. 308 of 1973 were forged and fraudulent observed that the defendant Nos. 2 and 3 were under legal obligations to prove their case that the said judgment and decree were genuine and valid by calling and producing the relevant suit register and the record of the said suit but they failed to do so.
10. Against this backdrop, the question that falls for consideration is whether the learned Single Judge was correct in law in dismissing the preset suit for the reason that there was no prayer in the plaint for declaration of title and recovery of khas possession in the suit land and’ also for defect Of party in that the Deputy Commissioner,’ Gazipur representing the Government was required to be implead as the plaintiff in place of the Divisional
Forest Officer, Dhaka Division.
11. A suit for declaration is maintainable under section 42 of the Specific Relief Act
as to any legal character or to any right as to any property of the plaintiff if the defendant denies or is interested to deny his title to such character or right. If the above conditions are satisfied, the plaintiff need not ask for any further relief than a mere declaration. But such suit would not be competent and maintainable and the court shall not make such declaration if he, being able to seek further relief than mere declaration to the above effect, omits to do so by way of consequential relief. Whether any other prayer by way of consequential relief is required to be made is determined with reference to the scope of
the plaint i.e. the allegations made in the plaint and not with reference to the allegations
in the written statement. The case of Siddique Vs. Bhupendra Narayan, 13 DLR (Dacca) 544 is on the point under consideration.
12. In the present case, the aforesaid gazette notifications have vested the government
in the Ministry of Forest with the right, title and interest in the suit land and with the subsistence of these two notifications the government in the Ministry of Forest still continues to have the right, title and interest in the suit land. Kence there was no legal requirement for the plaintiff to make a prayer for declaration of title to the suit land. Similarly, since it is asserted in the plaint that the plaintiff has been maintaining its possession and control of the suit land it was also not necessary for the plaintiff to incorporate a prayer in the plaint for recovery of khas possession. In this view of the matter, the learned Single Judge in the High Court Division fell into an error in dismissing the suit as not maintainable on the ground that the plaintiff did not ask for declaration of title and recovery of khas possession of the suit land. Similarly, we also do not agree with the learned Single Judge that the present suit suffers from defect of party for failing to implead the Government as plaintiff instead of the Divisional Forest Officer, Dhaka Division, rendering the suit liable to be dismissed on that account in view of section 99 of the Code of Civil Procedure. This has been a case of mere misdescription of the plaintiff. Such misdescription of the plaintiff can at best be taken to be a technical
defect and it should not be allowed to defeat the ends of justice. The policy underlying sections 21 and 99 of the Code of Civil Procedure is that when a case has been decided on merit, it should not be reversed unless it has resulted in failure of justice. Since the present case has been decided on merit, the mere misdescription of the plaintiff shall not be allowed to affect the suit, particularly when the misdescription of the plaintiff in the present suit has not affected the merit of the controversy or the jurisdiction of the court.
The present suit, as framed, is found to be maintainable and the judgment and decree
dated 29.9.1992 passed by the trial court is restored.
13. The appeal, for the above reason, is accordingly allowed with costs at all stages.
Source : V ADC (2008), 91