Appellate Division Cases
(Civil)
PARTIES
Md. Abdul Bari @ Md. Abdul Bari Gazi & others….Petitioners.
-Vs-
Md. Abdul Aziz & others………………. Respondents.
Mohanunad Fazlul Karim J
M.M. Ruhul Amin J
Judgment Dated: 14th May 2007
For declaration of title and confirmation of possession to ….(2)
The High Court Division considered the evidence of P.W.3 and the documents Ext.5 and 6 series and held that P.W.3 in his evidence admitted that the defendants are in possession of the suit land. The High Court Division further held that no paper has been filed to prove the settlement in favour of the plaintiffs. The High Court Division accordingly concluded that the plaintiffs have miserably failed to prove their settlement and possession rather P.W.3 admitted the possession of defendants in the suit land ……………..(9)
Therefore, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same…………………. (8)
Accordingly, the leave petition is dismissed ……………(9)
j Bivash Chandra Biswas, Advocate-on-Record……………….. For the Petitioners
Respondents………………………. Not represented. Civil Petition For Leave To Appeal No.892 of 2005
(From the judgment and order dated 23.05.2005 passed by the High Court Division in Civil Revision No.2852 of 2004.)
JUDGMENT
M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 23.05.2005 passed by a Single Bench of the High Court Division in Civil Revision No.2825 of 2004 discharging the Rule.
2. The plaintiff instituted Title Suit No.01 of 1991 in the Court of Assistant Judge, Shaymnagar, Satkhira for declaration of title and confirmation of possession to 14.27 acres out of 21.40 acres appertaining to Plot No.63 C.S. No.6 of Mouza Gopalpur under P.S. Shaymnagar District Satkhira stating, inter alia, that the entire 21.40 acres of land of Plot No.63, C.S.Khatian No.6 of Mouza Gopalpur P.S. Shyamnagar belonged to Brojomohini Dasi in 10 annas 13 gandas 1 kara 1 karant share and Roy Debendra Nath and others to the extent of 5 annas 6 gonda 2 kara 2 karant share. Brojomohini Dasi settled her share measuring an area of 14.27 acres in favour of the plaintiff No. 1, Kalu Gazi, the father of the plaintiff Nos.2 and 3. Jogendra Nath Mondal the father of the plaintiff No.6, Horendra Mondal, the father of the plaintiff Nos.7-9 and Dhani Gazi the father of the plaintiff Nos.10 & 11 on 15th Baisakh 1346 B.S. The plaintiffs are in possession on the basis of the aforesaid settlement. One Amanat Gazi filed Title Suit No.59 of 1975 in the Court of Additional Joint District Judge, Khulna and got a compromise decree on 17.11.1975 without impleading the plaintiffs as defendant in the said suit. The S.A. record was wrongly prepared in the name of the defendant No. 1 who threatened the plaintiff with dispossession. Hence is the suit.
3. The defendant Nos.2(ka)-2(ja) and 12 and defendant Nos.8 and 9 contested the suit by filing separate written statements.
4. Their case, in short, is that the suit land belonged to Brojomohini Dasi and others. The C.S. record was accordingly prepared in the name of Brojomohini Dasi and Roy Debendra Nath Bahadur. Brojomohini Dasi died leaving behind Noresh Chandra Basu and others as her heirs who settled the suit land in favour of the defendant Nos.1,2 and 3 Hamida Khatun and Monowara Khatun in the first part of 1353 B.S. The deed of settlement was granted in the name of the defendant No.l. The rent receiving interest of Noresh Chandra Basu was sold in auction under Act No. 11 of 1959 and it was auction purchased by Mongla Proshad Chowdhury who died leaving behind Debo Proshad Roy and Shib Proshad Roy as heirs. The defendant No.l executed a kabuliyat in respect of the suit land on 16.08.1955 in favour of Debo Proshad Roy and others and was in possession.
The S.A. record was prepared in his name. One Ahmed Ali filed a Criminal Case under section 144 of the Code of Criminal Procedure against the defendant and ultimately the said case was dismissed. The further case is that the defendant Nos.2,3,4 and 11 filed Title Suit No.272 of 1972 in the Court of Subordinate Judge(now Joint District Judge) , Khulna which on transfer was renumbered as Title Suit No.59 of 1972. The suit was decreed on compromise by the judgment and decree dated 17.11.1975. Thereafter, the defendant Nos.2-4 and 11 got their names mutated in Mutation Case No.06 of 1977-1978 and paid rent. The defendants Nos.2-4 and 11 sold 17.92 acres of land by four kabala
deeds dated 30.08.1990 and 08.09.1990 in favour of the defendant No. 12 who got his name mutated in Mutation Case No.223/90-91 and paid rent. The plaintiffs have got no title and possession in the suit land.
5. The trial court on consideration of the materials on record decreed the suit. On appeal in Title Appeal No.232 of 2002 the appellate court allowed the appeal and reversed the judgment of the trial court. Being aggrieved, the defendants moved the High Court Division in revisional jurisdiction and obtained the Rule, which after hearing was discharged.
6. We have heard Mr. Bivash Chandra Biswas, the learned Advocate-on-Record for the petitioner and perused the judgment of the High Court Division and other connected papers.
7. The High Court Division considered the evidence of P.W.3 and the documents Ext.5 and 6 series and held that P.W.3 in his evidence admitted that the defendants are in possession of the suit land. The High Court Division further held that no paper has been filed to prove the settlement in favour of the plaintiffs. The High Court Division accordingly concluded that the plaintiffs have miserably failed to prove their settlement and possession rather P.W.3 admitted the possession of defendants in the suit land.
8. Therefore, we are of the view that the High Court Division upon correct assessment
of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.
9. Accordingly, the leave petition is dismissed.
Source : V ADC (2008),332