Government of Bangladesh Vs. Shafia Begum and others

Appellate Division Cases

(Civil)

PARTIES

Government of Bangladesh, represented by the Additional Deputy Commissioner (Rev), Netrokona ……………………………………………………. Appellant

-VS-

Shafia Begum and others ……………………………………….Respondents

JUSTICE

Shahabuddin Ahmed CJ

A.T.M. Afzal J

Mustafa Kamal J

Latifur Rahman J

JUDGEMENT DATE: 31st January 1994

Declaration of title, confirmation of possession and for a declaration that the settlement of a portion of the suit land to the lessees after declaring the same as vested property is illegal and binding upon the plaintiff…………….. (1)

It also appears that the learned Single Judge of the High Court Division found from the judgment of the trial court that the disputed land including other lands were recorded in the name of Motiur Rahman and the original owners and the record of right was accordingly prepared in their names. The learned Single Judge also found that there were no valid papers to show that the suit land was lawfully treated as an evacuee property and subsequently as an Enemy Property. The learned Single Judge also found that the lower appellate court’s findings that Ext. 1, the kabala dated 23.11.50 was a fraudulent and manufactured document created for the purpose of the present suit was arrived at without any basis and materials on record………………. (9)

Civil Appeal No. 43 of 1991 (From the Judgment and order dated 28.3.91 passed by the High Court Division, Dhaka, in Civil Revision No. 68 of 1985).

Moksudur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocateon-

Record………………… For the Appellant

Md. Nurul Huq, Senior Advocate, instructed by M. Nowab Ali, Advocate-On-Record…………..For Respondents No. 1-4

For Respondent Nos. 5-7, 9, 10 and 11 (Dispensed with)

JUDGMENT

1. Latifur Rahman J: This appeal by defendant-Government following leave, is directed against the judgment and decree passed by a Single Judge of the High Court Division in Civil Revision No. 68 of 1985, making the Rule absolute after setting aside the judgment and decree of the lower appellate court which in turn set aside the judgment and decree of the trial Court in a suit for declaration of title, confirmation of possession and for a declaration that the settlement of a portion of the suit land to the lessees after declaring the same as vested property is illegal and binding upon the plaintiff.

2. The case of plaintiff-respondents is that the suit land belonged to three brothers,Mathuranath Chakraborty, Horo, Nath Chakraborty and Sree Nath Chakraborty. Sree Nath Charaborty died leaving behind his two brothers and his son Chitta Ranjan Chakraborty as his heirs. By amicable partition amongst themselves Mathura Nath Chakraborty got .04 acre in plot No. 1026 and Chitta Ranjan got .08 acre in Plot Nos.1025 and 1207 and Horo Nath Chakraborty got .13 acres in Plot No. 1088. Thereafter,Mathura Nath Chakrabotyy sold his .04 acre of land in favour of Sita Nath. Thereafter Sita Nath sold his land in favour of Matiur Rahman and others and Chittarajan Chakraborty sold 8 decimals of land in favour of Matiur Rahman and others by a registered kabala on 23.11.50 Plaintiff No. 1 purchased 5 decimals of land from Mathuranath Chakraborty and others on 31.5.67. Plaintiffs Forhad and Nurjahan purchased 4 decimals of land from Motiur Rahman by a registered kabala dated 30.3.73 and from whom plaintiff Nos. 2-3 purchased the same. Plaintiff No. 4 purchased 4 decimals of land from Motiur Rahman by registered kabala. In this way the plaintiffs got the suit land by purchase. The R.O.R in respect of the suit land was not prepared in the name of the plaintiffs but it was prepared in the name of original landlord and Motiur Rahman. The cause of action arose when the defendants disclosed that the suit property is an enemy property and dispossessed the plaintiffs from ¾ th decimals of land.

3. Defendant Nos. 1-4 are the lessees and defendant Nos. 5-7 are Government functionaries under the Vested Property Authority and they contested the suit by filling two separate written statements. According of them Mothura Nath Chakraborty and Horo Nath Chakraborty left this country for India long before partition without making any arrangement for administration and maintenance of the suit land and consequently, the same was treated as evacuee property and thereafter as Enemy Property and that the defendant Nos. 5-7 granted lease in favour of defendant Nos. 1-4. The documents of the plaintiffs are fabricated documents and the plaintiffs derived no title and possession in the suit land as their vendors had no title and possession.

4. In this case, the Trial Court decreed the suit, declaring title of plaintiff No.l in respect of .05 acres of land of Plot No. 1035 with confirmation of possession in .02 acres of land and for khas possession of remaining .03 acres after evicting the defendants therefrom.

5. The lower appellate Court reversed the decision of the trial court after holding that Plaintiff No. 1 did not take possession of the suit land since purchase and hence the question of dispossession does not arise and that the lessees of the government are in possession of the suit property. The lower appellate court also held that the plaintiffs failed to prove that the Vendor of Motiur Rahman ever purchased the suit property from Sitanath and Chitta Ranjan Chakraborty on 23.11.50.

6. The learned Single Judge of the High Court Division set aside the above findings of the lower appellate court and restored the decree of the trial Court.

7. Leave was granted to consider whether, the learned Single Judge of the High Court Division erred in law in reversing the findings of the last court of fact, without considering the admission of P.W.I Azhar Miah, plaintiff No.l in his testimony before the court that he never possessed the suit property since purchase and thereby wrongly set aside the finding of possession of the lessees of the Government, namely, defendant Nos.1-4.

8. Since in this case leave was granted primarily for consideration as to whether the learned single Judge correctly read the evidence of P.W.I as a whole and appreciated the same, the learned advocate for the appellant has placed the entire evidence .of P.W.I for appreciation the proper import of the same with regard to the question of plaintiffs possession in the suit land. It appears that P.W.1 in his examination-in-chief stated that he is in possession of the suit land and he was in possession of the land before his purchase. He further stated that he is in possession of 3/4th decimals of land and his prayed for confirmation in respect of this area. In cross-examination by defendant Nos. 1-4, the lessees, he denied the defence suggestion that he was not in possession of the suit land purchase. He further stated in corss-examination that after his purchase he never occupied any “hut” on the suit plot. From the evidence of P.W.I it appears that Plot Nos. 1025, 1026 and 1027 consists of 12 decimals of land and the total area of plot No. 1025 and 1026 is 9 decimals. This witness in his cross-examination has categorically stated that he is in possession of the suit land after purchase from Motiur Rahman and that he is not in occupation of the other huts which are in possession of defendant Nos. 1-4, lessees of the Government. This being the evidence of P.W.I it is palpably clear that the lower appellate court did not properly read the entire evidence of P.W.I and on misappreciation of the evidence of P.W.1 held that on plaintiff No. l’s own admission the possession of the lessees of the Government has been proved. The lower appellate court failed to consider the entire evidence on record, but relied on a solitary statement of the plaintiff that he is not in occupation of the huts. As a matter of fact plaintiff claims possession in the land not in the huts which are in possession of the defendants. Thus there being a total misreading and non-consideration of the evidence of P.W.I in the context of the examination-in-chief and cross examination, the learned Single Judge of the High Court Division was correct in holding that there has been misappreciation of the evidence of P.W.I and thereby the appellate court came to an erroneous finding of possession in the suit land by defendant Nos. 1-4.

9. It also appears that the learned Single Judge of the High Court Division found from the judgment of the trial court that the disputed land including other lands were recorded in the name of Motiur Rahman and the original owners and the record of right was accordingly prepared in their names. The learned Single Judge also found that there were no valid papers to show that the suit land was lawfully treated as an evacuee property and subsequently as an Enemy Property. The learned Single Judge also found that the lower appellate court’s findings that Ext. 1, the kabala dated 23.11.50 was a fraudulent and manufactured document created for the purpose of the present suit was arrived at without any basis and materials on record. The learned single Judge also found that Motiur Rahman vendor of plaintiffs erected some huts though he was not in continuous possession of the hut. The learned Single Judge after proper consideration of the entire evidence on record, both oral and documentary, came to a positive finding to the following effect:”I fail to understand how the appellate court came to the conclusion that the plaintiff was never in possession nor his vendor. The finding of the lower appellate court in reversing the finding of the trial court is contrary to evidence on record.”

10. Hence, there being proper appreciation of the evidence on record and particularly there being due consideration of the entire evidence of P.W.I on the question of his possession, the lower appellate Court was not correct in reversing the decision of the trial Court.

11. For the reasons stated above, the appeal is dismissed without any order as to costs.

Ed.

Source: IV ADC (2007), 415

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