Jagabandhu Sarker Vs. Jotish Chandra Sikder

Appellate Division Cases

(Civil)

PARTIES

Jagabandhu Sarker and others……………………………………Appellant

Vs

Jotish Chandra Sikder and others……………………Respondent

JUDGES

Md. Ruhul Amin J

M. M. Ruhul Amin J

Date of Judgment

6th December 2005

Declaration of title.

The uniform view of the superior Courts is that an order of remand is not legally sustainable while the same tantamount to fresh trial of the subject matter of the suit upon allowing a party in the suit, who was negligent in bringing on record the materials which were relevant for adjudication of the subject matter of the suit or in other words to allow a party to fill up the lacuna. The order of remand is also not sustainable in law while same gives and opportunity to a party in the suit to make fresh attempt on the basis of the order of remand to establish his claim in respect of the subject matter of the suit which he earlier failed (13)

plaintiffs having had failed to establish their claim in the land in suit on the basis of inheritance as held by the Court of first instance and the appellate Court, as such no useful purpose would be served in sending back the case i.e. revision to the High Court Division. The result of the prayer so made, in case allowed, would only be prolonging the litigation and thereby causing harassment to the appellant (15)

ADVOCATES

Mr. Meher Kanti Majumder, Advocate instructed by Aftab Hossain, Advocate-on-Record. For the Appellant.Mr. Abdus Sal am Khan, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-record. For Respondent No. 1-8 & 12, 13, 58. Not represented Respondent No. 9-11,14-57& 59-71

JUDGMENT

1. Md. Ruhul Amin J :- This appeal is by the defendant Nos. 1, 2,6,7,9,10,12,14 and 17-19 by leave against the judgment dated November 22,1998 of the High Court Division in Civil Revision No. 705 of 1995 making the rule absolute and thereupon sending the suit back to the trial Court for re-hearing in the light of the observation made by the lower appellate Court and with further direction tot he trial court for giving opportunity to the parties to adduce further evidence “if it is at all necessary” and also for fresh consideration of the evidence already on record by the trial Court if so be felt necessary. The Rule was obtained against the judgment and decree dated January 30,1995 of the Court of Additional District Judge, Madaripur in title Appeal No. 1 of 1993 affirming the judgment and decree dated October 21,1992 of the Court of Subordinate Judge (now Joint District Judge), Madaripur in Title Suit No. 4 of 1989.

2. The suit was filed seeking declaration of title, confirmation of possession and for declaration that the record of right prepared in the name of the defendants is illegal and fraudulent. The suit relates to 69 acres of land described in the schedule attached to the plaint. Plaintiffs filed the suit stating, inter alia, that their predecessors were the C.S. recorded tenants and that at the time of R.S. survey operation land claimed has been recorded partly in their names and partly in the names of the heirs of the landlord and that during S.A. survey operation 68.94 acres of land of the R.S. Khatians was partly recorded in their names and partly in the name of the defendants inspite of the fact that the plaintiffs are in possession of 64.65 acres of land and the remaining 4.19 acres of land was recorded in the name of defendant No. 1, who purchased the same from the plaintiffs, that on the basis of forged kabuliyat in respect of the land of C.S. Plot Nos. 331 and 350 certain Siddheswar Bala and others filed Title Suit No. 17 of 1962 in the Court of Subordinate Judge, Faridpur and on contest by the plaintiffs the said suit was dismissed and the order of dismissal was upheld up to the Appellate Division.

3. The suit was contested by defendants Nos. 1,2,6,7,9,10,12,14 and 17-19 as well as by the defendant Nos. 43,46,57 and 55 by filing separate sets of written statement. The case of the first set of defendants was that plaintiffs predecessors accepted the kabuliyat dated July 30,1927 from the predecessors of the defendants and while they were in possession certain Prano Nath Barroi and others on the basis of false kabuliyat dispossessed the predecessors of the defendants from some of the land of the kabuliyat of July 30, 1927 and thereupon the predecessors of the defendants filed Title Suit No. 14 of 1941 in the 2 n d Court of Subordinate Judge, Faridpur and in that suit plaintiffs predecessors admitted the genuineness of kabuliyat dated July 30,1927 and the said suit was decreed and the decree was put to execution by initiating Title Execution Case NO. 21 of 1946 and the defendants predecessors got possession in the land of the said suit, that thereafter certain Siddheswar Bala and others filed Title Suit No. 17 of 1962 in the 2 n d Court of Subordinate Judge, Faridpur against the predecessors of the plaintiffs and some of the defendants and the said suit on contest by the plaintiffs of the present suit and the defendants was dismissed, that the defendants are in possession of the land covered by the kabuliyat of July 30, 1927, but plaintiffs managed to get their names recorded in some of the R.S. and S.A. Khatians in collusion with the revenue officials.

4. The case of the other set of defendants was that C.S. recorded tenant Hridoy Krishna Majhi settled 20.82 acres of land to Sheikh Badan and others and handed over possession and from Sheikh Badan the defendants predecessors Gunai Pramanik and 12 others took settlement of February 17,1923 and that by the kabuliyat of the same date also settled 11.05 acres of land to Anil Pramanik and 5 others, that the said settlement holders died leaving the defendants and 38 others as heirs, taht some of the land taken settlement by the defendants predecessor has wrongly been recorded in the name of the plaintiffs and that on the basis of the said wrong recorded as well as making untrue statements the plaintiffs have filed the suit and as such the same is liable to be dismissed with costs.

5. It may be mentioned the plaintiffs are claiming the land as heirs of the C.S. recorded tenants Hridoy Krishna Majhi and 2 others or in other words the claim of the plaintiffs is on the basis of inheritance as heirs of the C.S. recorded tenants. As against that the claim of the defendants in respect of 68.20 acres of land, total land in suit is 69 acres, is on the basis of kabuliyat of July 30,1927 (Ext. -Kha).

6. The trial Court on consideration of the evidence, both oral and documentary, held that as the plaintiffs, predecessor settled the land to the predecessors of the defendants on the basis of the kabuliyat of July 30, 1927 genuineness whereof was admitted by the predecessors of the plaintiffs in Title Suit No. 14 of 1941 as such the plaintiffs have no occasion to make claim legally in respect of the land in suit. The trial Court in the background of the materials on record further held that the plaintiffs failed to establish their claim in the land in suit and also held that plaintiffs failed to prove their case. The trial Court also held that the suit was bad for filing the same impleading the dead person.

7. The plaintiffs went on appeal. The appellate Court on discussions of the evidence on record concurred with the findings of the trial Court that the suit has been filed against the dead person and taht there is no basis of the claim of the plaintiffs in the land in suit on the basis of inheritance because of the kabuliyat executed by the C.S recorded tenants in favour of the predecessors of the defendants on July 30, 1927 and because of the judgment in Title Suit No. 14 of 1941 wherein some of the plaintiffs predecessors deposed about the genuineness if the kabuliyat dated July 30, 1927 in favour of the predecessors of the defendants by the C.S. recorded tenants. The appellate Court also concurred with the finding of the trial Court that the plaintiffs failed to prove their case or in other words failed to establish their claim in the land in suit on the basis of inheritance and thereupon dismissed the appeal.

8. It may be mentioned the appellate Court while arrived at the finding that the suit was filed against the dead person and that plaintiffs failed to prove their case and that there is no legal basis of the claim of the plaintiffs as regard the land in suit by inheritance because of the kabuliyat of July 30, 1927 and because of the judgment in Title Suit No. 14 of 1941 wherein some of the predecessors of the plaintiffs deposed about the genuineness of the kabuliyat of July 30,1927 executed by the C.S. recorded tenants in favour of the predecessors of the defendants (first set) and thereupon dismissed the appeal but made an observation which has no relevancy and also is o gratuitous nature to the effect since it is not certain how much land has been recorded in the R.S. khatian in the name of the plaintiffs and in the name of the defendants and as such it was obligatory on the part of the plaintiffs to place all the R.S. records, in all 10, before the Court and that as defendants are not claiming the entire land in suit and that defendants are claiming only the land as are in the kabuliyat of July 30, 1927, as such an opportunity may be given to the plaintiffs to file a suit afresh on ascertaining by an experienced surveyor the land recorded in R.S. khatians and hence if the plaintiffs are so advised they would be competent to file a suit afresh. The plaintiffs in the background of the observation made by the appellate Court moved the High Court Division in revisional jurisdiction and obtained Rule contending that the appellate Court instead of allowing the appeal ought to have sent the suit back to the trial Court for fresh trial in the light of the observation made by the said Court.

9. The High Court Division in the background of the observation of the appellate Court without disposing of the revisional application on merit sent the suit back to the trial Court for disposal afresh in the manner as stated hereinbefore. The High Court Division was of the view that in the background of the observation made by the appellate Court, the said Court ought to have sent the suit back “to the trial Court with a direction to dispose of the suit in accordance with the direction of the lower appellate Court and also on the basis of the materials on record.”

10. Leave was granted to consider the contention that the appellate Court having had found that there was no basis of the claim of the plaintiffs in the land in suit on the basis of inheritance, the said Court erred in observing that quantity of land recorded in 10 R.S. kahtians should be ascertained by an experienced surveyor since the defendants did not claim entire land in suit on the basis of kabuliyat of July 30, 1927 and as such the High Court Division was in error in sending the suit on remand to the trial Court in that High Court Division was quite competent to consider the rest two R.S. Khatians, since 8 R.S. khatians out of total 10 R.S. khatinas were filed, before the Court of first instance, accepting the said 2 R.S. khatians as additional evidence, that plaintiffs having had not produced all the R.S. khatians the High Court Division was in error in sending the suit back to the trial Court for enabling them to take advantage of their latches and negligence i.e for producing further evidence, both oral and documentary, in support of their claim of the eland in suit.

11. At the time of hearing of the petition for leave to appeal the learned Counsel entering caveat for the Respondents submitted that in view of the decision in Title Suit No. 17 of 1962 in which the plaintiffs and the defendants were parties in the category of defendants the High Court Division was not in error in sending the suit back to the trial Court for ascertaining the land of the kabuliyat of the defendants by a surveyor since the order of remand was made in the interest of justice.

12. The case of the plaintiffs is that they have right, title and interest in the land in suit on the basis of inheritance. The total quantity of land in suit is 69 acres. As against the claim of the plaintiffs the definite case of the defendants is that their predecessors took settlement of 68.20 acres of land from the C.S. recorded tenants by the kabuliyat of July 30,1927. It may be mentioned the plaintiffs are the successive heirs of the C.S. recorded tenants. The concurrent finding of the Court of first instance as well as the appellate Court is that plaintiffs filed the suit against the dead person and the plaintiffs have failed to prove their case or in other words failed to establish their claim in respect of the land in suit i.e. 69 acres of land. These two findings covered the entire subject matter of the suit.

13. The appellate Court on independent consideration of the evidence having had affirmed the findings and decisions of the trial Court or in other words having had concurred with the findings and the decisions of the trial Court tht the plaintiffs have filed the suit against the dead person and that they have failed to prove their case or in other words failed to establish their claim in respect of the land in suit i.e. entire suit land measuring 69 acres of land the observation that as the defendants are not claiming the entire land in suit and that all the

R.S. Khatians i.e. 10 R.S. khatians, although 8 R.S . khatians were brought on record by the plaintiffs and as such land of the R.S. khatians requires ascertainment by a surveyor and that opportunity may be given to the plaintiffs to file fresh suit are not legally tenable, since the Court itself have arrived at the definite finding that the plaintiffs failed to prove their case or in other words failed to establish their claim in respect of the land in suit on the basis of inheritance. The finding so made covers the entire land in suit and as such there was no occasion for the appellate Court to make the observation like the one as mentioned hereinbefore and the said observation is not legally well founded.

14. The plaintiffs are claiming the land in suit on the basis of inheritance and their said case was not established and the Court of first instance as well as the appellate Court on consideration of the evidence, both oral and documentary held tht the plaintiffs failed to establish their case in respect of the land in suit. In the afore state of the matter observation of the appellate Court was not only legally well conceived one but also was not consonant with the finding made by it on consideration of the evidence, both oral and documentary, the finding of the Court of first instance as well as of the appellate Court being that plaintiffs failed to establish their claim in respect of the land in suit or in other words could not prove their case and the said finding being based on the materials on record and the High Court division having had not disturbed the said finding as well as the finding that the suit was bad since same was filed against dead person the order of remand made by the High Court Division with the direction to the trial Court to hear the suit afresh upon giving opportunity to the parties to adduce further evidence, “if it is at all necessary ” and also to consider the evidence on record afresh ” without prejudice to any party” was not legally well founded one since the suit was filed against dead persons and consequently the suit in respect of throes persons being not maintainable and that as the plaintiffs failed to establish their claim in respect of the land in suit, they were not entitled to the relief and consequently the suit as was liable to be dismissed and as such the Court of first instance as well as the appellate Court in dismissing the suit did not commit any error. The finding and decision of the courts below relates to the subject matter of the suit in its entirety and that being the position, the defendants, non-claming the fraction of the land in suit. i.e. 80 acre of land (defendants kahuliyat relates to 68.20 acres of land) does not establish claim of the plaintiffs in respect of the said quantity of land since concurrent finding of the courts below were that plaintiffs failed to prove their case or in other words failed to establish their claim in respect of 69 acres of land which also includes the land not claimed by the defendants. In that state of the matter observation of the appellate Court for ascertaining the land of the R.S. khatians and of making gratuitous advice to the plaintiffs to bring fresh suit for establishing their claim in respect of the remaining land, that is the land outside the land of the defendants, kabuliyat

was quite beyond the frame of the suit. This being the position there was no occasion for remanding the suit back to the trial Court for fresh adjudication and as such High Court Division was in error in making the order of remand. The uniform view of the superior Courts is that an order of remand is not legally sustainable while the same tantamount to fresh trial of the subject matter of the suit upon allowing a party in the suit, who was negligent in bringing on record the materials which were relevant for adjudication of the subject matter of the suit or in other words to allow a party to fill up the lacuna. The order of remand is also not sustainable in law while same gives and opportunity to a party in the suit to make fresh attempt on the basis of the order of remand to establish his claim in

respect of the subject matter of the suit which he earlier failed.

15. The learned Counsel for the appellants submits that as genuineness of the kabuliyat of July 30, 1927 has been established, as such order of remand will not serve any purpose since it is the concurrent finding of the courts below, that plaintiffs’ claim in the land in suit as heirs of the C.S. recorded tenants has no basis and that plaintiffs have no title in the land in suit. As against that it was submitted by the learned Counsel of the Respondents that plaintiffs are in possession of the land in suit and that S.A. recorded was wrongly prepared in the name of the defendants. The learned Counsel for the Respondents took us through the deposition of the witnesses examined by the plaintiffs in support of their case. From the evidence of the said witnesses it is seen that plaintiffs failed to prove their claim of possession in the land in suit by the reliable witness. It may be mentioned in Title Suit o. 17 of 1962 of the 2nc* Court of Subordinate Judge, Faridpur

the genuineness of the kabuliyat of July 30, 1927 came up for consideration and the same was found genuine as mentioned hereinbefore. The total land of the said kabuliyat is 68.20 acres. The learned Counsel for the Respondents submits that the appeal has been filed against some dead persons i.e. defendat-Respondent Nos. 10,13 and 15 but in support of the aid submission no material has been brought on record. It has also been submitted by the learned Counsel for the Respondents that as the High Court Division did not dispose of the revisional application on merit the same may be sent back to the High Court Division for disposal on merit.

16. Since no material has been brought on record to dislodge the genuineness of kabuliyat dated July 30, 1927 and the total quantity of land of the said kabuliyat being 68.20 acres leased out by the predecessors of the plaintiffs and that the plaintiffs having had failed to establish their claim in the land in suit on the basis of inheritance as held by the Court of first instance and the appellate Court, as such no useful purpose would be served in sending back the case i.e. revision to the High Court Division. The result of the prayer so made, in case allowed, would only be prolonging the litigation and thereby causing harassment to the appellant. In view of the discussions made hereinbefore we find merit in the appeal. Accordingly the appeal is allowed. There is no order as to cost.

Source: III ADC (2006) 332.