Md. Abdul Jalil Vs. Mosammat Shefali Begum

Appellate Division Cases

(Civil)

PARTIES

Md. Abdul Jalil …………………………………………..Appellant

-Vs-

Mosammat Shefali Begum and others………………….. Respondents

JUDGES

Md. Ruhul Amin J

M. M. Ruhul Amin J

M. A. Aziz J

Date of Judgment

17th May 2005

Question of the lega.ity of a kabla

On a perusal of the High Court Judgment we find that the said Division was completely oblivious of the fact, that with the concurrent finding of facts arrived at by the trial Court as well as by the court of appeal below which is the final court of facts by threadbare discussions of the evidence of P.Ws and perusal of pleadings cannot be interfered with by the High Court Division unless the judgment is corum-non-judice, perverse. below and deposition of the witnesses specially the clever and dubious evidence of Sakhawat Hossain a former employee of the Relief and Rehabilitation Department and husband of plaintiff Monowara Begum there is no scope to say that the courts below have misread or mis-appreciated the evidence of the witnesses. In our view the High Court Division ought not to have reversed the finding of facts arrived at by the trial Court as well as the court of appeal below. Accordingly, the appeal is allowed with costs. The judgment dated 6.1.1997

passed in Civil Revision No. 3254 of 1992 is set aside (5)

ADVOCATES

Md. Abdul Majid, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record For the Appellant. Shamsul Huda, Advocate, instructed by Sufia Khatim, Advocate-on -Record For Respondent Nos. 1-4. Not Represented. .For Respondent Nos. 5-8.

JUDGMENT

1. M. A. Aziz J :- This appeal by leave at the instance of the Salgaria Muhajir cooperative

Society Limited represented by its Secretary Md. Abdul Jalil calls in question the legality of the judgment dated 6.1.1997 passed by the High Court Division in Civil Revision No. 3254 of 1992 setting aside the judgment and decree dated 30.5.1992 of the Court of Subordinate Judge, Pabna in Other Class Appeal No. 34 of 1984 affirming the judgment and decree dated 29.1.1984 passed by the Mnsif, 2n d Court, Pabna in other Class Suit No. 109 of 1982 dismissing the suit. 2. The plaintiff Mosammat Shefail Begum and three others instituted Other Class Suit No. 109 of 1982 seeking a declaration that the order dated 18.10.1982 passed by the Additional Commissioner, Rajshahi Division in Appeal Case No. 100 of 1978 is illegal, void and not binding upon them. They contended that Tarakanath Pramanik the original landlord of the suit land i.e 0.70 decimals of land gave pattan to Anil Ranjan in 1335 B. S, who in turn gave the said 0.70 decimals of land to Monindra Nath Pramanik by way of pattan and delivered possession. Monindra Nath Pramanik sold 0.70 decimals of land to the plaintiffs by kabala dated 17.1.1977.

3. Defendant No. 4 Salgaria Muhajir Co-operative Society Ltd. represented by its Secretary Md. Saiful Islam hereinafter referred to as the Society filed a petition before the Additional Deputy Commissioner (Revenue), Pabna on 8.2.1977 alleging that the property measuring 0.70 decimals of land out of 1.62 acres of S. A Khatian No. 1419. Plot Nos. 285 and 291 were acquired by the Government under L. A Case No. 21/52-53 for rehabilitation of 30 refugee families and ever since those refugees have been residing there by constructing houses. One Monindra Nath Pramanik by tempering the record of right (ROR) sold the suit land to the plaintiffs .The land was recorded in the name of Anil

Ranjan and since he left for India defendant No. 4 Salgaria Samity on the basis of their long possession as vested property prayed for lease of the same. The Additional Deputy Commissioner (ADC) (Revenue) started Case No. 84 of 1976-1977 and ultimately dismissed the petition by the Order dated 24.1.1978. Defendant no. 4 preferred Appeal No. 100 of 1978 before the Commissioner, Rajshahi Division. The Said appeal was heard by the Additional Commissioner, Rajshahi and by order dated 18.10.1979, he found that the land in suit of Anil* Ranjan against Monindra Nath Pramanik and the recording of Monindra’s name as tenant of the disputed land and sale set aside Case No. 319 of 1960-1961 are all managed collusive and fraudulent and that the purchase of the respondent from Monindra in 1997 is void and inoperative inasmuch as the land in dispute had been acquired long ago by the District magistrate, Pabna in L. A Case Nos. 50/51-52 and 51/52-53 for refugee rehabilitation . The appeal was allowed by order of the Additional Commissioner by order dated 24.1.1978.

4. Having felt aggrieved by the order of the Additional Commissioner Rajshahi, the plaintiffs filed Other Class Suit No. 109 of 1982 in the Court of Munsif, 2 n d Court, Pabna for a declaration that the judgment and order of the Additional Commissioner is illegal, void and not bining upon them. Mention may be made here that plaintiff No. 4 Monowara Begum;s husband P. W. 1 Sheik Sakhawat Hossain was an employee in the Relief and Rehabilitation Section of the office of the Deputy Commissioner and filed the suit after retirement by creating forged papers using the names of the plaintiffs. While in service he deposed in a suit on befhalf of defendant No. 1 (Government) admitting that the written statement was prepared according to his narration and assertion and he signed the same. In his deposition however Sakhawat Hossain as P.W 1 in the latter suit admitted that he is husband of plaintiff No. 4 and that he was the head Assistant in the Relief and Rehabilitation Department and stated that there in no existence of L. A. Case Nos. 50/51-52 and 51/52-53. Whereas in his cross-examination he said that ha and defendant No. 3 were together in Title suit No.288 of 1975 and filed written statement on 3.1.1975 admitting that he was in the Relief and Rehabilitating Department. He deposed in that suit and stated that the written statement was written according to his narration. And in the written statement by defendant No. 1 in O. C. Suit No. 109 of 1982 dated 14.4.1983 it has been categorically stated that Sakhawat Hossain the husband of plaintiff No. 4 was an employee in the Relief and Rehabilitation Department and by falsely using the names of other plaintiffs, he filed the suit in order to grab the land of the samity and with that end view created false, forged and void documents through false personation and the Trial Court in O. C Suit No. 109 of 1992 has in to uncertain term held that P. W.I

Sakhawat Hossain husband of plaintiff No.4 Monowara Begum admitted that he was defendant No. 5 in Title Suit No. 288 of 1975, that he was the head Assistant of Relief and Rehabilitation and that in the amendment of plaint of Title Suit No. 288 of 1975, the suit land was included. He also admitted that the said land was acquired for the rehabilitation of the refugee from India. Furthermore, he said that through L .A. Case Nos. 50/51-52 and 51/52-53 the suit land was made khas by the Government.The trial court observed that P.W. 1 was one of the defendants in Title Suit No. 288 of 1975 and for his interest supported the case of the Government but now for his own interest is resiling from his earlier stand supporting the Government. The suit (T.S. 288 of 1975) was dismissed, but in the present suit as P.W. 1 he has taken a u turn. Furthermore, Monidra Nath Pramanik as P . W.2 stated in cross-examination that the suit land was acquired by the Government for the refugees. P.W. 3 Nemai Chandra Majumder also said in his cross examination that Anil was not seen and his whereabouts were not known when we saw the refugee colony. The court of appeal below also believed the acquisitions of the suit land in the aforesaid L. A. Cases and that the refuges have been living there for a long time. The appellant court discussed P.W.s 2, 3 and 4 while discussing P.Ws.3 and 4 found that the situation boundary of the suit land was fully supported by those P.Ws. The Appellate Court in agreement with the trial Court held that the plaintiffs have hopelessly failed to prove their right, title and possession in the suit land and accordingly the trial Court Dismissed the suit and it was affirmed by the court of

appeal below.

5. On a perusal of the High Court Judgment we find that the said Division was completely oblivious of the fact, that with the concurrent finding of facts arrived at by the trial Court as well as by the court of appeal below which is the final court of facts by threadbare discussions of the evidence of P.Ws and perusal of pleadings cannot be interfered with by the High Court Division unless the judgment is corumnon-judice, perverse. Having gone through the judgment of the trial Court and the Court of appeal below and deposition of the witnesses specially the clever and dubious evidence of Sakhawat Hossain a former employee of the Relief and Rehabilitation Department and husband of plaintiff Monowara Begum there is no scope to say that the courts below have

misread or mis-appreciated the evidence of the witnesses. In our view the High Court Division ought not to have reversed the finding of facts arrived at by the trial Court as well as the court of appeal below. Accordingly, the appeal is allowed with costs. The judgment dated 6.1.1997 passed in Civil Revision No. 3254 of 1992 is set aside.

SOURCE: III ADC (2006) 484