Present:
Mr. Justice Siddiqur Rahman Miah
Civil Revision No. 4020 of 2009
Government ofBangladeshrepresented
by Deputy Commissioner, Brahmanbaria
and others
………… Petitioners
-Vs-
Abdul Aziz
… Opposite party
Mrs. Salma Rahman AAG with
Mrs. Towhida Khatun AAG
… For the petitioners
Mrs. Rezina Mahmud
… For the opposite party
Heard on 14.03.2011, 13.03.2011
and judgment on 22.03.2011
This Rule under section 115 of the Code of Civil Procedure at the instance of defendants respondents-petitioners calls in question the judgment and decree dated 04.05.2008 passed by the learned District Judge, Brahmanbaria in Title Appeal No.61 of 2006 by which the learned District Judge, allowed the appeal on contest by setting aside the judgment and decree passed by the learned Assistant Judge, Nasirnagar, Brahmanbaria on 30.04.206 in Title Suit No. 110 of 2005 decreeing the suit.
The short facts which have given rise to the Rule are as follows: the opposite party as plaintiff filed Title Suit No. 110 of 2005 in the court of Senior Assistant Judge, Nasirnagar , Brahmanbaria praying for declaration of his title over the suit property mentioned in the schedule of the plaint.
The plaintiff in the plaint had stated, inter alia that Bishnu kapali was the original owner of the suit jote and he died leaving behind a son Nagarbashi Kapali and a daughter Ananta Bala who become the successors of Bishnu kapali who sold the suit property by two registered deeds dated 22.12.2951 AD to Moezuddin @ Darag Ali, the father of the plaintiff, and Mongal Miah, the paternal uncle of the plaintiff; that Mondal Miah had no issue and thus Moezuddin @ Darag Ali became owner of the suit property; that SA Khatian was rightly recorded in the name of the Darag Ali @ Maezuddin; that the plaintiff got some of the suit land mutated in his name in SA Khatian and that he paid rent of the suit property including other properties till 2001 to the government. It is further stated that the suit property was wrongly recorded in the filed khatian in the name of the government during last settlement survery which created cloud in the title of the plaintiff over the suit property. As such the plaintiff has been compelled to file the instant suit.
The government contested the suit by filing written statement denying the material allegation stated in the plaint that the suit is barred by limitation and also barred by principle of stopple, acquiescence and waiver and that the suit is not maintainable and the suit is false and fabricated. The registered deeds of the plaintiff were fake and fraudulent. The suit property was rightly recorded in the name of during last settlement survey. It is further stated that the real facts of the case is that SA record was prepared in the name of Mahananda Kapali, son of Govinda kapali in Khatian No. 111 and that an area of 70 decimals land had been recorded in the name of Dorag Ali in Khatian No. 13 and another 57 decimals had been recorded in the name of nine others and as such an area of 1.27 acres was recorded in SA khatian and as such total area of land does not match. It is also stated that record of Tahshil office shows that the suit plot No. 931 was never recorded in the name of any person in the recent survey conducted by the government and any person did not make claim at the time of survey; that no body had paid rent against the said suit plot No.931 and that the plaintiff at the time of survey did not produce any documents or deeds before the concerned surveyor. As per law, there was no claim against the suit plot. The suit plot has been duly recorded in the name of government as khas khatian No.1 The defendants as such have prayed for dismissal of the suit.
The plaintiff and defendants adduced witnesses before the learned trial court and all the witnesses were cross examined by the parties.
The trial court on considering the facts and circumstances of the case as well as the relevant provision of law dismissed the suit.
The plaintiff against the judgment and decree passed by the Assistant Judge, Nasirnagar Brahmanbaria preferred Title Appeal No. 61 of 2006 before the learned District Judge and the learned District Judge considering the facts and circumstances of the case as well as the evidence on record allowed the appeal and set aside the judgment and decree passed by the Assistant Judge, Nasirnagar in Title suit No.110 of 2005.
Being aggrieved by and dissatisfied with the judgment and decree passed by the learned District Judge in Title Appeal No. 61 of 2006 the respondent petitioner preferred this revision before this court and obtained the present Rule.
Mrs. Salma Rahman, the learned Assistant Attorney General for the petitioner submits that the appellate court without considering the documents in record and the evidence adduced by the parties allowed the appeal resulting in an error in decision occasioning failure of justice; that the learned Assistant Judge being the trial court of the suit came to the finding that the plaintiff has failed to prove that the settlement plot No. 931/3 and SA plot No. 931 are the same and also came to finding that the plaintiff did not file SA khatian No. 111 and as such the learned Assistant Judge rightly dismissed the suit. She further submits that appellate court came to a wrong finding about the title of plaintiff relying on mutation khatian and rent receipt over the suit land. As per law the mutation khatian and rent receipts are not the documents of title. The learned appellate court failed to consider of this vital aspect of law and as such committed an error of law in the decision occasioning failure of justice and as such the impugned judgment and decree are liable to be set aside.
Mrs. Rezina Mahmud, the learned Advocate for the plaintiff opposite party on the other hand submits that the defendants petitioners have no prima facie title and possession in the suit land; that the plaintiff opposite party have title and possession in the suit land; that the learned Assistant Judge, Nasirnagar failed to consider facts, circumstances and evidence on record and dismissed the suit. She further submits that the learned District Judge, considering the facts, circumstances and evidence on record allowed the appeal reversing the judgment and decree of the learned Assistant Judge and as such there is no scope to interfere in the impugnmed judgment and decree of the learned District Judge.
The learned Advocate cited the decision in the case of Abul Hossain and others vs. Amjad Hossain and others reported in 62 DLR (AD) 436 in support of her contention.
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.
There is no denying of the fact that Bishnu Kapali was the original owner of the suit jote and he died leaving behind a son Nagarbashi Kapali and a daughter Ananta Bala who became the successors of Bishnu Kapali. The contention of the plaintiff is that after the death of Bishnu Kapali, Nagarbashi Kapali and his sister Ananta Bala sold the suit property by two registered deeds dated 22.12.1952 AD to Mozezuddin @ Darog Ali, the father of the plaintiff, and Mongal Miah the paternal uncle of the plaintiff. Mondal Miah had no issue and thus Maezuddin @ Darog Ali became owner of the entire suit property. The SA khatian of the suit property was rightly recorded in the name of Darog Ali @ Moaezuddin the father of the plaintiff. The plaintiff got some of the suit land mutated in his name in SA Khatian. He paid rent of the suit property including other properties till 2001 to the government. The suit property was wrongly recorded in the field khatian in the name of the government during last settlement survey.
On the other hand, the case of the government is that the registered deeds of the plaintiff were fake and fraudulent. The suit property was rightly recorded in the name of defendants during last settlement survey. It is further stated that SA record was prepared in the name of Mahananda Kapali, son of Govinda kapali in Khatian No. 111. An area of 70 decimals land had been recorded in the name of Dorag Ali in Khatian No. 13 and another 57 decimals had been recorded in the name of other’s. It is also stated that record of Tahshil office shows that the suit plot No. 931 was never recorded in the name of any person in the recent survey conducted by the government and any person did not claim at the time of survey. No body had paid rent against the said suit plot No.931. The plaintiff at the time of survey did not produce any documents or deeds before the concerned surveyor. As per law, there was no claim against the suit plot and thus, the suit plot has been duly recorded in the name of government as khas khatian No.1.
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.
Now let us see whether the plaintiff opposite party has succeeded in proving his case. The plaintiff opposite party has brought this suit claiming for declaration of title in the suit property as field khatian has been wrongly recorded in the name of the government.
The plaintiff have examined three pws and adduced evidence supporting the title and possession of the plaintiff and the plaintiff also filed certified copies of the CR Khatian No.47 marked exhibit (1), original document dated 22.12.1951 marked exhibit-2 and original documents being No. 8774 marked exhibit3 and certified copies of ROR khatian No.13 marked exhibit 4, Mutuation khatian No. 323 marked exhibit 5 and some dakhilas marked exhibits 6(1) to 6 ( Tha) in support of his title and possession.
Admittedly Bishnu Kapali was the original owner of the suit property and admittedly he died leaving behind two heirs namely a son Nagarbashi Kapali and a daughter Ananta bala, who sold the suit property by two registered deeds dated 22.12.1952 vide exhibit 2 and 3 respectively to the predecessors of the plaintiff appellant. The government though challenged the two registered deeds of more than 30 years back yet could not succeed to show any evidence in the slightest form that the documents ( exhibit- 2 and 3 were false and fraudulent. Mere contention of a party is not enough at all to treat a registered deed as fraudulent or false.
The learned Assistant Attorney General for the petitioner government could not succeed to show any legal interpretation that the deeds (exhibit 2 and 3 of the plaintiff appellant were fraudulent for such and such grounds. So, in a nutshell, it can be said that the plaintiff appellant petitioner Abdul Aziz has bonafide right, title and interest of the suit land.
Moreover the learned Advocate for the plaintiff petitioner referring sub section 1 of the section 92 of the State Acquisition and Tenancy Act submits that the procedure for extinguishment of interest of raiyats in certain cases in section 92 of the SAT Act which runs thus:
92. Extinguishment of Interest of Raiyats in certain cases:- (1) The interest of a raiyat in a holding shall be extinguished-
(a) When he dies intestate leaving no heir entitled to inherit under the law of inheritance to which he is subject;
(b) when he surrenders his holding at the end of any agricultural year by giving notice in the prescribed form and in the prescribed manner and within the prescribed period to the revenue officer;
(c) when he voluntarily abandons his residence without making any arrangement for payment of the rent as it falls due and ceases to cultivate his holding either by himself or by members of his family or by or with the aid of, servants or labourer with the aid of partners or bargerdars for a period of three successive years, or
(d)when such interest had devolved by inheritance under the law of inheritance to which such raiyat is subject, on a person who is not a bona fide cultivator and such person has not cultivated the land comprised in the holding either by himself or by members of his family or by or with the aid of, servants or labourers or with the aid of partners or bargadars during the period of five years from the date on which such interest has so devolved on him and there is no sufficient cause why he has not so cultivated the land.
The learned Advocate for the petitioner further submits that none of the conditions stated in the above section does not fall in the instant case.
She further refers sub-section 3 of the section 92 of the SAT Act which runs thus:
“(3) Before entering on a holding under subsection (2) , the Revenue officer shall cause a notice to be published in the prescribed manner declaring his intention to so enter on the holding and specifying the reasons thereof and also inviting objections from all persons interested in the holding and shall consider any objection that may be submitted to him within the period specified in that behalf in the notice and shall record a decision.
Referring subsection 3 she further submits that before entering on a holding under subsection (2), the revenue officer did not comply with the procedure of taking of holding in the name of the government and did not specify the reasons thereof.
I find substance in the arguments of the learned Advocate for the plaintiff opposite party and I am of the view that there is no ground of taking of the suit holding in the custody of the government and no legal procedure was followed and as such taking over of the holding illegal.
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.
I may profitably refer the decision in the case of Abul Hossain and others vs. Amjad Hossain and others reported in 62 DLR (AD)436 and provision of section 10 of the Evidence Act which provide for a presumption of ownership in favour of the person who is in possession of the property. A person in possession of land however imperfect his title may be, has a good title against whole world except the true owner and until the true owner comes in court to assert a claim to the property. Possession is evidence of title and gives a good title as against wrong doer.
In the instant case since the plaintiff opposite party have been in possession on the basis of deeds, rent receipt 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 the land on the basis of defective title for more than 12 years can acquired title. A person in possession of the land can only be dispossessed by another having batter title.
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 defendants petitioners have not been able to find out any such legal infirmity in the impugned judgment which calls for any interference.
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 Assistant Judge, Nasir Nagar. 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.
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.