Mr. Justice Siddiqur Rahman Miah
Civil Revision No. 2891 of 2003
Abdus Sobhan and others
Amir Ali and others
… Opposite parties
Mr. AFM Md. Zubir Husain
… For the petitioners
Mr. M.A. Khaleque
… For the opposite parties
Heard on 14.03.2011, 15.03.2011
and judgment on 16.03.2011
This Rule under section 115 of the Code of Civil Procedure at the instance of plaintiffs-petitioners calls in question the judgment and decree dated 17.03.2003 passed by the learned Joint District Judge, 2nd court, (In Charge), Nilphmari in Other Appeal No. 79 of 2002 allowing the appeal reversing the judgment and decree dated 30.05.2002 passed by the learned Senior Assistant Judge, Nilphamri Sadar in Other Suit No. 52 of 1999 should not be set aside.
2. The short facts which have given rise to the Rule are as follows: the petitioners being the plaintiffs instituted Other Suit No. 05 of 1999 in the court of Senior Assistant Judge, Nilphmari sadar for declaration of Title in respect of 1.84 acres of land mentioned in the schedule; inter alia, stating that the suit property originally belonged to Bariz Mahmood, the predecessor of the plaintiffs; that before SA record, he became totally blind and at that time his sons were minors ; that Bariz Mahmood died leaving two sons namely Abdus Sobhan and Akbor Ali, and one daughter namely Zobeda Khatoon; that zobeda Khatoon died leaving only one daughter namely Firoza Khatoon who got 1/5 Share and plaintiff Nos. 1 and 2 also got accordingly; that the plaintiff Nos. 1 and 2 were in possession in respect of 9/30 portion of suit land and that plaintiff No. 3 was in possession in respect of 1/30 portion of suit land.
3. It is further stated that recently at the time of SA operation, the plaintiffs did not keep any document of suit property due to blindness of their father; that the responsibility of preparing SA record was given to Mafizuddin, the predecessor of defendant Nos. 1 to 3; that the plaintiffs came to know from the employee of the survey department that SA record was prepared in the name of Mafizuddin, the predecessor of defendants Nos. 1 to 3 on the 1st Ashin of 1405 BS and to avoid future problem, the plaintiffs have filed this suit.
4. The defendant Nos. 5 to 7 contested the suit by filing written statement and denied the material allegations made in plaint and asserted, inter alia, that the suit property of schedule ‘Ka’ of CS khatian No. 456 belonged to Barij Mahmood as riyoti title under Prashanna Kumar Sarker; that after CS record, due to nonpayment of tax, the suit property was purchased through nilam auction by the Zaminder and took possession there of; that after purchase, zaminder took selami from Chaco Das and Madan Das and possession was given to them as pattan; that on the basis of pattan, they have been possessing and cultivating the suit land; that Chaco Das and Madan Das were cousin and as such Chaco Das by amicable settlement got the suit property and was possessing the same; that later on he sold out to Mafizuddin total 1.61 acres of land by kabala dated 02.04.1956 and also sold 23 decimals of land to Afezuddin; that accordingly SA record was prepared in the name of Modan Borman , Mafizuddin and Afazuddin; that the predecessor of the plaintiffs did not get any property; that Mafizuddin died leaving three sons namely Amir Ali, Zakrul Hoque and Babul Hossain who got the property and have been possessing the same; that Modan Kumar while possessing the suit property died leaving 4 sons Kais Alu Barman, Monglu Barman, Shemcharan Roy and Dhumalu Barman; that Ma Charan got .18 acres of land, Dhumalu Barman got .18 acres of land, Kalisalu Barman got .18 acres of land, and Monglu got .18 acres of land by kabalas dated 17.1187, 15.09.88,15.10.88 and 18.10.88 respectively who transferred the suit property through kabala to Amir Ali; that though.72 acres of land were transferred to Amir Ali but actually Amir Ali got 69 acres of land; that thus Amir Ali and his two brothers were the owners of 1.38 acres of land; that Modon Borman sold. 23 acres of land out of .46 acres of land to Ensan Bibi; that Ensan Bibi sold.15 acres of land out of .23 acres of land to Ashedul Hoque; that Abdul Aziz Minor and Ensan Bibi transferred remaining .08 acres of land by kabala dated 22.06.99 to Shahabuddin; that Afazuddin Sheikh sold .23 acres of land to different persons but at present Abdul Hakim and Hossain are in possessing of 11 ½ acres of land each; that in this way the sons of defendant No. 5 are in possession of 1.53 acres of land for the last 45 years. Recent record was also recorded in their names. Plaintiffs have no right title and interest in the suit property. Hence the suit is liable to be dismissed.
5. The plaintiffs examined 3 witnesses including plaintiff No. 1 and the defendants examined 4 witnesses including defendant No.4.
6. The learned Senior Assistant Judge, Syedpur, Nilphamari was pleased to decree the suit by his judgment and decree dated 30.05.2002. against the defendants and the defendant Nos. 5 to 7 preferred an appeal against the judgment and decree of the learned Senior Assistant Judge, Syedpur in the court of learned District Judge, Nilphamari which was registered as other appeal No. 79 of 2002 and on transfer, the appeal was heard by the learned Joint District Judge, (in charge), Nilphamari who allowed the appeal by his judgment and decree dated 17.03.2003 reversing the judgment and decree dated 30.05.2002 passed by the learned Senior Assistant Judge, Syedpur, Nilphamari in Other Suit No. 52 of 99 decreeing the suit.
7. Being aggrieved by the judgment and decree dated 17.03.2003 passed by the learned Joint District Judge (in charge), Nilphmari, the plaintiffs petitioners preferred this revisional application and obtained this Rule.
8. Mr. AFM Md. Zubair Hussain, the learned Advocate for the plaintiffs petitioners submits that the learned Joint District Judge committed an error of law resulting in an error in the decision occasioning failure of justice in not having considered the material evidence in respect of fact, title and possession of the plaintiffs in the suit land; that the plaintiffs have been able to prove their prima facie title in the suit land by adducing CS procha but the learned Joint District Judge without giving any cause and reasoning came to an erroneous finding that the plaintiffs have failed to prove their prima facie title. He further submits that the trial court found the title of the suit property in favour of the plaintiffs and the lower appellate court not having considered the fact committed an error of law resulting in an error in his decision occasioning failure of justice and as such the impugned judgment and decree is not sustainable in law.
9. He cited the decision in the case of Hussain Ahmed Chowdhury @ Ahmed Hossain Chowdhury and others vs. Md. Nurul Amin and others reported in 47 DLR (AD)162 in support of his contention.
10. Mr. MA Khaleque, the learned Advocate for the defendants opposite parties submits that the plaintiffs petitioners has no prima facie title and possession in the suit land; that the defendants opposite parties have title and possession in the suit land; that Senior Assistant Judge failed to consider the facts, circumstances and evidence on record. On the other hand, he submits that the learned Joint District Judge, considering the facts, circumstances and evidence on record rightly allowed the appeal reversing the judgment and decree of the learned Senior Assistant Judge, Nilphamari and as such there is no scope to interfere the impugned judgment and decree of reversal.
11. He cited the decisions in the case of Abdul Hamid Mollah vs. Md. Abdul Hye and others reported in 49 DLR 428; in the case of Hriday Ranjan Dey and another vs. Niranjan Dey and others reported in 6 MLR(AD)267, in the case of Lal Miah being dead his heirs Momena Khatun and others vs. Haji Md. Ibrahim Meah and others reported in 28 DLR (AD)61 and in the case of Khobhari Singh vs. Ram Proshad Roy and another reported in The Calcutta Law Journal 387 in support of his contention.
12. Now the point for determination is whether the court below committed any illegality or material irregularity in passing his decision which is occasioning any failure of justice.
13. There is no denying of the fact that the suit land originally belonged to Boriz Mahmood, the predecessor of the plaintiffs and CS record was accordingly prepared in his name; that at the time of SA record, Boriz Moahmood became blind and his heirs were minors; that task of preparing SA record was given to the predecessor of the defendants Nos. 1 to 3 , Mofizuddin who collusively prepared the same in his name; that the plaintiffs are all along in possession and the story of auction sale is false and fabricated and as such the plaintiff are entitled to get decree.
14. The case of the contesting defendants, on the other hand, is that the suit land was put to auction due to nonpayment of rent; that the zaminder purchased the suit land by way of auction sale; that the zaminder subsequnelty leased out the suit land to Checo Das and Monmohan Das; that Chaco Das acquired the entire land by way of amicable settlement and sold out 1.61 acres to Mofizuddin and .23 acres to Afazuddin whose names were recorded in the SA khatian including Modan Mohan. The further contention of the defendants opposite parties is that the defendants having title in the suit land have been possessing the same paying rent to the Zaminder as well as to the government.
15. It is consistent view of our apex court that plaintiff is to prove his case and he cannot get a decree on the weakness or failure of the defendant. The plaintiff is to prove his own case even in a experte proceeding . Disbelieve of the defence case “ipsofacto’ does not make the plaintiff’s case believable. Even in the case of an experte disposal of a suit, the court is required to come to a finding on the assessment of the materials on record that the plaintiff has been able to prove his case. I find support of the above view in the case of Khandaker Mobarok Ali vs. Jahanara Begum reported in 1 ADC(2004) 401 and Jinnatunnessa vs. BD 48 DLR(HCD)208.
16. Now let us see whether the plaintiffs petitioners have succeeded in proving their case. The plaintiffs petitioners have brought this suit simply praying for declaration of title in the suit land as the SA record was prepared in the names of defendants opposite parties. As regards the preparation of SA record in the name Mofizuddin, the predecessor of the defendant Nos. 1 to 3, the contention of the plaitniffs petitioners is that the predecessor of the plaintiffs namely Boriz Mahmood became blind and his heirs were minors and as such he had given the task of preparing SA record on the predecessor of the defendant Nos. 1 to 3 namely Mofizuddin who collusively prepared the same in his name. The plaintiffs have totally failed to prove such contention by adducing any evidence.
17. On the other hand, the contention of the contesting defendants is that suit land was put to auction due to nonpayment of rent and zaminder auction purchased the suit land and leased out the same taking salami and giving receipts which were marked exhibit- ‘Ka’ and ‘Ka(1)’ to ‘Ka (6)’. Thereafter the defendants purchased suit land by way of kabala dated 02.04.1946 marked exhibit ‘kha’, kabala dated 10.12.1962 marked exhibit – ‘ga’, kabala dated 22.06.1999 marked exhibit ‘Gha’, kabala dated 23.01.1984 marked exhibit – ‘Cha’ kabala dated 02.05.2983 marked exhibit ‘Cha’ (1), kabala dated 17.11.1987 exhibit ‘Cha’ (2), Kabala dated 15.10.1988 exhibit ‘Cha’ (3), Kabala dated 15.09.1988 exhibit 6(4) and Kabala dated 18.10.1990 marked exhibit 6(5).It is also the contention of the contesting defendants that field record marked exhibit “ Uma” was prepared in the names of the defendants by virtue of the above mentioned documents. The further contention of the contesting defendants is that the defendants have been possessing the suit land on the basis of these kabalas paying rent to the government and these rent receipts are marked exhibits Ka(3) to Ka(6). It is not the contention of the plaintiffs that these kabala and rent receipts are forged and fraudulent. The only contention of plaintiffs is that the defendants have failed to file any papers of auction sale.
18. In this respect the contention of the defendants opposite parties is that though no paper of auction was filed by the defendants opposite parties, that does not debar them from getting relief because their subsequent papers of taking pattan, deeds and rent receipts have filled up the lacunas to understand that the suit land was auction sold due to nonpayment of rent.
19. On perusal of the record, it appears that the plaintiffs have totally failed to prove their possession in the suit land. On the contrary, the defendants by adducing reliable documentary and oral evidence have succeeded in proving their long possession in the suit land for which the learned trial court also categorically admitted the possession of the defendants in the suit land even before the preparation of SA record. Recent field record marked exhibit ‘Uma’ is also the document of possession of the defendants.
20. In this respect the learned Advocate for the opposite parties cited the decision in case of Hridoy Ranjan Day the another vs. Niranjan Dey and others reported in 6 MLR (AD)267 wherein it has been held that person entering into possession of land on the basis of defective title document and having been in continuous possession there of for more than 12 years acquires title preferred by adverse possession as contemplated under section 28 of the Lamination Act, 1908 and as such he is entitled to get decree for declaration of his title. In the instant case since the defendants opposite parties have been in possession on the basis of zamindery receipt, various deeds, SA records, government rent receipts and field record which are though defective title still they have acquired title on the basis of continuous possession in the suit land for more than 12 years. A person remains in possession of a land on the basis of defective title for more than 12 years can acquire title. Person in possession of land can only be dispossessed by another having better title. In the instant case, the plaintiffs petitioners have acquired no better title in the suit land than that of the defendants opposite parties.
21. In this connection I may profitable refer the decisions in the case of Abdul Hamid Mollah vs. Abdul Hye reported in 49 DLR 418 wherein it has been held that the defendant being in possession of the suit land from before the filing of the suit, the plaintiffs was to pray for recovery of khas possession by way of consequential relief and only a simple suit for declaration in not maintainable. In the instant case, the plaintiffs petitioners appear to be out of possession for more than 12 years, their simple suit for declaration is legally barred without praying for consequential relief of the recovery of khas possession.
22. The scope of section 115(1) of the code of Civil Procedure is now well settled. Consistent pronouncements by the Highest court of the country have made it abundantly clear that a court of revision under section 115(1) CPC can interfere with the findings of fact as the final court of facts only in exceptional circumstances when the findings are shockingly pervers or these are vitiated by non reading and misreading of the material evidence or mis-construction of any important documents affecting the merit of the suit. The learned advocate for the plaintiffs petitioners has not been able to find out any such legal infirmity in the impugned judgment which calls for any interference.
23. In the facts and circumstances of the case and the materials on record. I am of the view that the learned court of appeal below on proper consideration of the evidence on record and after adverting to the reasons assigned by the trial court reversed the judgment passed by the learned Senior Assistant Judge, Syedpur, Nilphamari. The findings recorded by the learned court of appeal below are well supported by the evidence on record and are based on correct principle of the appreciation of the evidence. I find no illegality in the impugned judgment to call for any interference by this court exercising revisional power.
24. In the result the revision fails and the Rule is discharged without any order as to cost.
Send down the L.C.R at once.