Appellate Division Cases
(Civil)
PARTIES
Gouranga Lai Sheel & others ……………………..Appellants.
-vs-
Gouranga Chandra Nath & others ………………….Respondents.
JUSTICE
Md. Ruhul Amin. J
M.M. Ruhul Amin. J
Md. Tafazzul Islam. J
JUDGEMENT DATE: 31st July, 2004
The code of Civil Procedure, Section 115.
Mere assertion of the defendants that they did not execute the registered pattas of the year of 1952-53 in favour of the plaintiffs’ predecessor is not enough. They must seek relief before a competent court for declaration that the pattas were forged and fraudulent but that has not been done. It may be mentioned here that a registered document carries with it a presumption that the executants appeared before the concerned Sub-Registrar and admitted execution the document. The plaintiffs did not make any attempt to rebut this presumption…………………. (17)
Civil Appeal No. 13 of 1998. i From the judgment and order dated 13.08.1997 passed by the Hiiih Court Division in Civil Revision No. 1490 of 1992.)
Pariuial Chandra (htlut, Advocate instructed by Md. Nawab Ali, Advocate-on-Record………… for the Appellants.
Abdul Wadud Bhuiyan, Senior Advocate instructed by Mvi. Md. Waliidullah, Advocateon-Record………………… For Respondent Nos. 1 & 2.
Respondent Nos. 3-6: Not represented.
JUDGMENT
1. M. M. Ruhul Amin, J: This appeal by leave is directed against the judgment and order
dated 13.08.1997 passed by a Single Bench of the High Court Division in Civil Revision No. 1490 of 1992. making the Rule absolute.
2. Short facts are that the plaintiffs brought die suit for a declaration that they are the owners of the disputed land and that the enlistment of the suit property as vested property is illegal stating inter alia, that the disputed property originally belonged to Upendra Nath. Cham Bula. Sabitri. Uina Charan. Radhakanta. Laxnii Kanta, Amullya Ratan and Gopal Candra. On the death of Uma Charan, defendant No. 1 who as his only son inherited his share. The shares of Upendra, Charu Bala and Sabitri devolved upon defendant No. 2. While the shares of Radhakanta and Amullya went to their brother.
Gopal Chandra who settled their respective shares in the disputed property with Laxmi
Kanta Sil, father of the plaintiffs by 3 registered patta during the period from 1952-53. Laxmi Kanta possessed the suit land and got his name mutated in respect of the suit land in Mutation Case No. 83/57-58. The defendant Nos.l and 2 long after the order of mutation got the same cancelled by the Circle officer (Revenue). Banaripara. In the meantime Laxmi Kanta died leaving the plaintiffs as heirs and they have been possessing the disputed property. The Circle officer (Revenue) held out thereat to the plaintiffs to dispossess them from the suit land on the plea that the same was enlisted as vested property.
3. The defendant Nos. 1 and 2 by joint written statement resisted the claim of the plaintiffs in respect of the settlement of the disputed property and the possession of the plaintiffs. They claim that the pattas are forged and fraudulent document.
4. The defendant No.4 also contested the suit on the ground that the property was vested
property.
5. The trial Court found title and possession of the plaintiffs in the disputed property and
decreed the suit and further held that the disputed property is not vested property. The defendant Nos. 1 and 2 took an appeal to the Court of District Judge being Title Appeal No. 164 of 1989 and the court of appeal dismissed tlie appeal and affirmed the judgment of the trial Court. Tlie defendants then preferred tlie above mentioned civil revision and the learned Single Judge of the High Court Division made the Rule absolute reversing the concurrent judgment of the courts below. Being aggrieved the plaintiffs preferred the civil petition for leave to appeal before this Division.
6. Leave was granted to consider the submission that the learned Single Judge of the
High Court Division has traveled beyond his jurisdiction under section 115 of the code of
Civil Procedure by reversing the concurrent finding of facts of the two courts below and also the submission that the learned Single Judge of the High Court Division has ignored the elaborate discussions and findings arrived at by the trial Court on the question of execution of the patta upon comparison of the signatures of defendant Nos. 1 and 2 in the patta with those in the record of Miscellaneous Case No. 52 of 1986-87 filed by them and their signatures appearing in the deposition sheets in the instant suit and also the further submission that the learned Single Judge of the High Court Division has not taken into account the cogent discussion of the trial court as to the death certificates of Sabitri (Ext. Uma) and the khatian (Ext.Ga) issued upon cancellation of mutation of the name of the plaintiffs’ predecessor in Mutation Case No. 83 of 1957-58 after over 30 years of such mutation and the last submission that the learned Single Judge of tlie High Court
Division did not consider all the material facts and circumstances taken into consideration by the two courts below while arriving at their findings of facts in respect of title and possession of the plaintiffs in the disputed property and the learned Single Judge has thus fallen into an error of law in passing the impugned judgment.
7. We have heard Mr. Parimal Chandra Guha, the learned Counsel for the appellants
and Mr. Abdul Wadud Bhuiyan. the learned Counsel for respondent Nos. 1-2 and perused
the judgment of the High Court Division and other connected papers.
8. It is undisputed that the suit land originally belonged to Upendra Nath. Charu Bala.
Sabitri, Uma Charan. Radhakanta. Laxmi Kanta. Amullya Ratan and Gopal Chandra and
the share of Uma Charan devolved upon his only son of the defendant No. 1 and the shares of Upendra Nath. Cham Bala and Sabitri ultimately devolved upon defendant No.2 while the share of Radha Kanta and Amullya Ratan went to his brother Gopal Chandra who settled their respective shares in the disputed land with Laxmi Kanta father of the plaintiffs by 3 registered pattas during the period from 1952-53.
9. It is also undisputed that Laxmi Kanta got his name mutated in respect of suit property
in Mutation Case No. 83/57-58 and paid rent regularly and long thereafter defendant Nos. 1 and 2 got the order of mutation cancelled by the Circle (Revenue), Banaripara in Mutation Case No. 52 of 1986-87.
10. Tlie defendant Nos. 1 and 2 resisted the claim of tlie plaintiffs on the ground that the
pattas executed by them in favour of plaintiffs’ predecessor was not followed by any kabuliyat and as such those are forged and fraudulent documents and not acted upon. Hence on the basis of such pattas the plaintiffs or their predecessor-in-interest did not acquire any right, title and interest in the suit land. The further case of the defendants is that the defendant No. 1 Gouranga Chandra Nath and defendant No.2, Kanai Lai Nath did not settle the suit land to Laxmi Kanta, the predecessor of tlie plaintiffs and they also did not give any patta and if the plaintiffs produce any patta for the same, the same will be treated as forged document. Their further case is that the mutation of the name of
plaintiff predecessor, Laxmi Kanta in Mutation Case No.83 of 1957-58 was without jurisdiction and the same was cancelled in Mutation Case No. 52 of 1986-87. Both the court of appeal below and the trial court on consideration of the materials on record held that the onus is on the defendant Nos.l and 2 to show that the registered pattas of the year 1952-1953 as claimed by them were created and so long the pattas were not declared forged and fraudulent by a competent court, the same can not be said to be forged. The Trial court and the appellate court further held that it is admitted that the plaintiffs
predecessor got his name mutated in Mutation Case No.83^ of 1957-58 by order dated
15.09.1957 and the present defendant did not raise any objection against such mutation in the name of plaintiffs’ predecessor till tiling of mutation case No. 52 of 1986-87 which the earlier order of mutation in the name of plaintiffs’ predecessor dated 15.09.1957 was cancelled.
11. It is also the case of defendant Nos.l and 2 that the original recorded tenants left for
India long ago and the suit land was correctly enlisted as vested and non-resident property. Thus it appears that the defendants’ claims are two fold-firstly they challenge the registered pattas executed by them in favour of the plaintiffs’ predecessor in the years 1952 and 1953 and secondly they claim that since the original recorded tenants of the suit land left for India long ago the same was rightly enlisted as vested property.
12. Record shows that the plaintiffs paid rent in the name of their predecessor Laxmi
Kanta for the 1987, 1988, 1977,1968,1969,1975 and for other years also. On the other hand, the defendant Nos. 1 and 2 paid rent for suit land for 10 years at a time from 1383-1393 B.S. by one single dakhlia and that is also after the institution of the instant suit
and before that they could not tile a single dakhlia showing payment of rent for the suit
land.
13. It is the contention of the defendants that in 1952-53 the defendant Nos.land 2 had
no transferable interest in the suit land because Sabirtri. Charu Bala and others were still alive at that time. The Courts below concurrently held on comparison of the signatures of defendant Nos. 1 and 2 in registered pattas with the papers of the Revenue Department and their signatures in the deposition sheet of the instant suit that the signatures of defendant Nos. 1 and 2 in the pattas tally with their signatures in the papers of Mutation Case filed by them before the revenue authority and their deposition sheet in the present suit.
14. Regarding the death of recorded tenants. Gopal Chandra and Charu Bala. the Courts
below held that the defendant Nos. 1 and 2 adduced contradictory evidence regarding their deaths and as such those were not relied upon. The courts below also discarded the death certificate of the Sabitri on the ground that the same was not produced from the proper authority. Regarding the age of the defendant Nos. 1 and 2 also the courts below on consideration of their evidence and other materials on record found that they tried to suppress the truth regarding their age. Accordingly, the courts below held that Gouranga Chandra Nath did not inherit the property of Gopal Chandra and in 1952 and 1953Kanai Lai Nath and Gouranga Chandra Nath had transferable interest in suit land and they transferred their interest in the suit property in favour of plaintiffs’ predecessor. The courts below further held that the mere fact that no kabuliyat was executed after the
execution of pattas is no ground for disbelieving the execution of pattas by defendant Nos. 1 and 2 in the face of dakhilas by the plaintiffs and the mutation of the name of plaintiffs’ predecessor in respect of the suit land in Mutation Case No. 83 of 1957-58 without any objection by defendant No. 1 and 2.
15. The trial court and the appellate court on consideration of the oral and documentary
evidence concurrently held that the plaintiffs are in possession of the suit land. Both the trial court and the appellate court further held that the witnesses examined by the plaintiffs to prove their possession are disinterested witnesses, whereas the witnesses examined by defendants to prove their possession are highly interested persons and accordingly their evidences were disbelieved regarding possession of the defendants in the suit land.
16. The courts below also found that initially the Mutation case filed by defendant Nos. 1
and 2 for cancellation of the mutation of the name of plaintiff’s predecessor in Mutation
Case No. 83 of 1957-58 was rejected by the Revenue Officer but subsequently the same
Revenue Officer without any new ground and without assigning any cogent reason reviewed his earlier order and allowed Mutation Case No. 52 of 1986-87 of the defendants and cancelled the mutation of the name of plaintiff’s predecessor in respect of the suit land. In the facts and circumstances, the courts below held that the cancellation order was without jurisdiction.
17. The courts below further held that the mere assertion of the defendants that they did
not execute the registered pattas of the year of 1952-53 in favour of the plaintiffs’ predecessor is not enough. They must seek relief before a competent court for declaration that the pattas were forged and fraudulent but that has not been done. It may be mentioned here that a registered document carries with it a presumption that the executants appeared before the concerned Sub-Registrar and admitted execution the document. The plaintiffs did not make any attempt to rebut this presumption.
18. We have already indicated that it is also the case of the defendant Nos. 1 and 2 that the original owners left for India long ago and hence the suit property became vested and nonresident property. This contention of the defendant is contrary to their first contention that they did not execute the pattas in 1952-53 in favour of the plaintiffs’ predecessor and even if they executed the pattas since no kabuliyat was executed the pattas were not acted upon. Thus it is clear that the defendants tried to blow hot and cold simultaneously. It is to be mentioned here that the defendant Nos. 1 and 2 can not be allowed to approbate and reprobate at the same time.
19. The trial Court and the appellate court further found that the defendants came from
India after 1971 and claimed the disputed property and then the trouble arose about more than 34 years after the execution of registered pattas.
20. The courts below also concurrently held that the defendant No. 4 could not produce the original census list or certified copy thereof to prove their contention that the suit property was validly declared as vested and non-resident property. Accordingly, the courts below held that the suit property is not vested property.
21. In the facts and circumstances of the case and in the light of the discussion above, we are of the view that the court of appeal and the trial court on proper consideration and correct assessment of the materials on record arrived at a correct decision and the High Court Division without adverting to the reasonings given by the appellate court and trial court and without considering the materials on record in their proper perspective reversed the concurrent findings of fact of the two courts below although there was no misreading and non- consideration of evidence by the two courts below and as such the impugned of the High Court Division can not be said to be a proper judgment of reversal. Therefore, the impugned judgment requires interference by us. The appeal is allowed without any order as to costs.
Ed.
Source: I ADC (2004), 507