Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner , Jamalpur Vs. Mst. Saleha Khatun Judgment and others

Appellate Division.Cases

(Civil)

PARTIES

Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner , Jamalpur …………………………………………………Appellant

-Versus-

Mst. Saleha Khatun Judgment and others ……………………………….Respondents

JUSTICE

Md. Ruhul Amin. J

Md. Tafazzul Islam. J

Date of Judgment 31st July. 2006

Seeking declaration of title in respect of the land .

Section 90 of the Evicence Act

On the basis of which plaintiffs are claiming the land in suit are forged, fabricated as well as ante-dated and the same has been manufactured for the purpose of grabbing the land of the Government (8)

In compliance to our direction the plaintiffs though their learned Counsel produced the said Exhibits. On scrutiny we have found that the Exts.2(a) as page 78 reflects the facts pointed out by the learned Deputy Attorney General. In that state of the matter the learned Counsel appearing for the plaintiff-Respondents felt difficulty to explain the fact as disclosed by Ext.2(a) and noticed by us. We have examined the Ext.l and the Exts.2-2(b). It appears to us that the documents are of recent origin and upon resorting to artificial action attempt has been made to give the documents look of long past. The documents were purpose of Civil Appeal No. 57 of 2003 (From the Judgment and Order dated July 10, 2001 passed by the High Court Division in Civil Revision No. 1751 of 1999)  mutilated and attempt has been made to show that the same were eaten up by white ants. The documents have purposely been made to give look of moth-eaten. It may further be mentioned at places documents have been torn up and thereupon the same has been pasted (9)

ADVOCATES

Mr. M.A. Azim, Deputy Attorney General, instructed by Mr. B. Hossain, Advocate-onrecord For the Appellant.Mr. Sk. Razzaque AH, Senior Advocate, instructed by Mr. A.K.M. Shahidul Huq, Advocate -cm-record For Respondent Nos. 1,2,6,8,11-13 For Respondent Nos. 3,5,7,9,10 Mr. M.G. Bhuixan, Advocate-on-record Respondent No.4 Not represented

JUDGMENT

1. Md. Ruhul Amin, j : The appeal, by leave, by the defendant is directed against the judgment dated July 10,2001 of a Single Bench of the High Court Division in civil Revision No. 1751 of 1999 making absolute the Rule obtained against the judgment and decree dated November 5,1998 of the 1st court of Subordinate Judge (now Joint District Judge), Jamalpur in Other Class Appeal No. 50 of 1992 allowing the same upon reversing the judgment and decree dated June 29J992 of the Court of Senior Assistant Judge, Jamalpur in other class Suit No. 107 of 1984 decreeing the same.

2. The suit was filed seeking declaration of title in respect of the land in suit measuring 1.09 acres. It is the case of the plaintiffs that the land in suit listed in C.S. Khatian No. 24

belonged to Brajendra Kishore Roy Chowdhury and he on receiving Tk. 50/- as The  salami and fixing rent at Tk.5 and annas 4 settled the land with Jobed Ali Pramanik by an Amalnama dated Falgoon 25, 1323 B.S that Jobed Ali Pramanik executed and registered kabuliyat in favour of the Zamindar on Jaistha 15, 1324 B.S. corresponding to May 30, 1917, that Jobed Ali Pramanik died leaving wife (plaintiff No.l), a daughter (plaintiff No.2) and a brother by name Darbesh Ali Pramanik, that Darbesh Ali Pramanik died leaving plaintiff Nos. 3-8 and a son by name Abdus Sobhan who died leaving wife plaintiff No. 9, three sons, plaintiff Nos. 10-12 and two daughters, plaintiff Nos. 13 and 14. It is the case of the plaintiffs that they are in possession of the land for more than 12 years on payment of rent and that during the last survey the land in suit instead of being recorded in the name of the plaintiffs or their predecesor wa wrongly recorded in the name of the Government in khas khatian No.l though Government has no right, title and possession in the land in suit and that as the preparation of wrong record having clouded

plaintiffs’ title they are constrained to file the suit.

3. The defendant filed the written statement denying the averments made in the plaint and stating, inter alia, that the suit was barred by limitation, that plaintiffs at no point of time had/have title in the land in suit and the plain tiffs also are not in possession of the land in suit, that the plaintiffs grab the land of the Government have created papers by ante-dating the same, that the papers on the basis of which plaintiffs are claiming the land are collusive, fraudulent, fabricated and ante-dated, that at the time of last survey the land has been recorded in the name of the Government in khas khatian No. 1, that the land at all time was khas land, that plaintiffs have filed the suit making untrue statements and as such the suit is liable to be dismissed. It may be mentioned although Government filed written statement but did not examine any witness, but cross-examined the witnesses examined by the plaintiff.

4. The trial Court decreed the suit on the findings that the suit is not barred by limitation and the same is maintainable, that the plaintiffs have proved the Amalnama and the rent receipts by the evidence of P.W.4, that Ext. 3 (certified copy of the kabuliyat) lends support to the plaintiffs’ claim of title in the land in suit, that although defendant has conteded that the plaintiffs’ papers arc fabricated and ante-dated but no evidence has been lead to establish the said contention, that PWs. 2 and 3 have proved possession of the plaintiffs in the land in suit, that from the materials on record it is seen that plaintiffs have right, title, interest and possession in the land in suit.

5. As against the judgment and decree of the trial Court Government, the defendant went on appeal. The appellate Court reversed the judgment and decree of the trial Court and thereupon dismissed the suit against the Government on the finding ” BANGLA” “BANGLA”   The appellate Court also observed that plaintiffs failed to establish their right, title and interest in the land in suit and the plaintiffs have failed to establish that they are in possession of the land in suit for more than 60 years or more denying the title of the Government.

6. The plaintiffs as aaainst the iudsment and decree of the appellate Court moved the High Court Division in revisional jurisdiction and obtained the Rule. The High Court Division made the Rule absolute primarily taking the view that the documents i.e. Amalnama, the kabuliyat and the rent receipts on the basis of which plaintiffs are claiming right, title and interest in the land in suit are of more than 30 years old and as such the same have the presumptive value as per provision of section 90 of the Evidence Act and that the said presumption has not been rebutted from the said of the defendant, that the appellate Court has not at all considered the legal effect of the documents which are of more than 30 years old and also the other evidence on record, that lower appellate Court was in error in holding that the documents are of recent origin and that upon resorting to artificial action attempt has been made to give the documents look of oldness or in other words of long time past. It may be mentioned the High Court Division examined the documents and thereupon made the aforesaid observation and also rejected the contention of the learned and also rejected the contention of the trial Court as to possession of the land by the plaintiffs was not legal in the background of the materials on record and that the appellate Court was not in error in reversing the finding of the trial Court in that respect, that appellate Court was in error in holding that the plaintiffs are not in possession of the land over 60 years since Ext. 1 clerly shows that the plaintiffs are in possession of the land since 1917. that in the facts and circumstances of the case plaintiffs

were not required to prove their possession of the land in suit over 60 years, that no material has been brought on record from the side of the defendant in support of the preparation of record of right in the name of Government prepared “sometime in 1964” and that the record so prepared has no basis and the same has not affected the title of the

plaintiff, that the appellate Court has made the judgment upon non-consideration and mis-reading of the evidence and that also without application of judicial mind to the facts and circumstances of the case.

7. Leave was granted to consider the contention that the document produced by the plaintiffs in support of their claim in the land in suit having found to be forged, fabricated and ante-dated by the lower appellate Court the High Court Division was on error on setting aside the judgment of the lower appellate Court, that certified copy of the kabuliyat dated 8.8.1917 having been created subsequently for the purpose of raising claim in the land in suit as found by the Court of appeal below the High Court Division was in error in law in setting aside the judgment of the lower appellate Court and thereupon restoring the judgment of the trial Court, that the High Court Division was in error in setting aside the finding of facts arrived at by the Court of appeal below on consideration of the evidence on record.

8. Tt is seen from the judgment of the High Court Division as well as from the courts below that it was the consistent case of the defendant that the document on the basis of which plaintiffs are claiming the land in suit are forged, fabricated as well as ante-dated and the same has been manufactured for the purpose of grabbing the land of the Government.

9. The learned Deputy Attorney General in the course of submission in support of the contention as to fraudulent character of the document on the basis of which plaintiff claimed the land in suit has drawn our attention to one of the rent receipts i.e. Ext.2(a) at page 78 of the paper book to show that the said rent receipt was printed on February 19, 1935 but therein it has been noted that rent for the year 1335 B.S. was paid on Falgoon 17,1336 B.S. The aforesid fact having had noticed by us we directed the plaintiffs to produce the Ext. 1, the amalnama, the rent receipts Exts.2-2(b) and Ext.3, the certified copy of the kabuliyat. In compliance to our direction the plaintiffs though their learned Counsel produced the said Exhibits. On scrutiny we have found that the Exts.2(a) as page 78 reflects the facts pointed out by the learned Deputy Attorney General. In that state of the matter the learned Counsel appearing for the plaintiff-Respondents felt difficulty to explain the fact as disclosed by Ext.2(a) and noticed by us. We have examined the Ext.l and the Exts.2-2(b). It appears to us that the documents are of recent origin and upon resorting to artificial action attempt has been made to give the documents look of long past. The documents were purposely mutilated and attempt has been made to show that the same were eaten up by white ants. The documents have purposely been made to give look of moth-eaten. Tt may further be mentioned at places documents have been torn up and thereupon the same has been pasted. We have already mentioned the finding of the appellate Court as regard the documents particularly Ext.l and Exts.2-2(b) On our scrutiny of the documents we are of the view the lower appellate Court was quite correct in making the finding about the nature and character of the said documents. The High Court Division was in error in setting aside the finding of the lower appellate Court as to the nature and character of the documents of the plaintiffs when the same do not suffer from any infirmity, the finding of the High Court Division that plaintiffs are in possession since 1917 is not sustainable in the background of the facts that the documents of the plaintiffs are not of the year as the plaintiffs trid to establish. It may further be mentioned that the plaintiffs have not proved the kabuliyat (Ext.3) as per requirement oi’ law i.e. upon calling the volume wherefrom the certified copy of the kabuliyat said to have been supplied to them. Because of the finding as to character of plaintiffs’ documents presumption as provides in section 90 of the Evidence Act is not available to the same.

10. In the background of the discussions made hercinabove we find merit in the appeal.

11. Accordingly the appeal is allowed with costs at all stages.

Source: III ADC (2006) 805