Md Aftab Uddin Vs. Kosimuddin and others

Appellate Division Cases

(Civil)

PARTIES

Md Aftab Uddin………….. Petitioner

-Vs-

Kosimuddin and others………….. Respondents

JUSTICES

Md. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 24th August 2006

Seeking declaration of title in the land in suit measuring 2.06 acres ……….(1)

It has concurrently been found by the appellate Court as well as by the trial Court that plaintiff miserably failed to prove his possession in the land in suit. It may be mentioned the suit was for mere declaration of title. Since the plaintiff failed to prove his possession in the land in Suit we are of the view High Court Division as well as the Courts      below have correctly held that the suit was not maintainable. The learned Advocate for the petitioner Could not point out that the finding so arrived at by the Court of facts suffers from any error or that the same has been made upon mis-reading or non-consideration     of the evidence. Since the finding of fact arrived at by the Court of facts were based on correct appreciation of the evidence or in other words was not bad for non-consideration or mis-reading of the evidence we are of the view the High Court Division has committed no error in not interfering with the judgment of the Court of appeal……………….. (7)

Md. Bodruddozo, Advocate, instructed by Md. Nawab AH. Advocate-on-record

…………………….For the Petitioner

Respondents …………………………Not represented

Civil Petition For Leave To Appeal No.813 of 2005

(From the Judgment and Order dated April 17, 2005 passed by the High Court Division

in Civil Revision No.772 of 1994)

JUDGMENT

Md. Ruhul Amin J : This petition for leave to appeal has been filed against the judgment of April 17, 2005 by a Single Bench of the High Court Division in Civil Revision No.772 of 1994 discharging the Rule obtained against the judgment and decree dated November 11, 1993 of the 1st Court of Additional District Judge, Jhenaidah in Title Appeal No.257 of 1989 dismissing the same and thereby affirming the judgment and decree dated October 31, 1989 of the Court of Assistant Judge, Sailakupa, Jhenaidah, in Title Suit No. 131 of 1987 dismissing the same. The suit was filed seeking declaration’of title in the land in suit measuring 2.06 acres.

2. The suit was filed stating, inter alia, that the land in ‘Ka’ schedule belonged to Fuljan, that the land in ‘Kha’ schedule has been recorded in the name of Habil and others and he transferred his share in the ‘Kha’ schedule by a Heba-bil-Fwaz deed dated December 20, 1956 to Kholsha Nessa Bibi and Fuljan Bibi, that Fuljan transferred 1.15 acres of land from ‘Kha’ schedule and also transferred her entire share in ‘Ka’ schedule by deed of gift dated February 8, 1962 to the plaintiff, that possession was delivered to the plaintiff, that

R.S. record in respect of ‘Ka’ schedule land was wrongly prepared in the name of Fuljan Bibi and that as regard the land of ‘Kha’ schedule R.S. record was wrongly prepared in the name of Habil and others, that Fuljan Bibi and Habil have no interest in the land of the said ‘Ka’ and ‘Kha’ schedule and that also they have no possession, that defendants having had denied the title of the plaintiff, he was constrained to file the suit.

3. The suit was contested by the defendant Nos.l, 2, 4 and 5 by filing joint written statement denying the material averments made in the plaint and stating, inter alia,

that Fuljan Bibi used to possess the land in suit through her husband Habil who died leaving brother’s son, defendant Nos.4 and 5, that Fuljan Bibi was a pardanshin woman and she became ill in the middle of Magh, 1368 B.S. and the plaintiff visited Fuljan Bibi at that time and proposed for her treatment and for that alleged purpose took Fuljan Bibi on 25th Magh, 1368 B.S. to Sailakupa and upon making representation that Fuljan Bibi’s signature was necessary for her treatment took thumb impression on certain papers which were blank and upon using those papers the plaintiff had created the deed of gift, that

Fuljan Bibi after death of her husband stayed with defendant Nos.4 and 5, that plaintiff has no title and possession in the land in suit, that the plaintiff disclosed about the deed on 8.2.1962 for the first time and thereupon claimed the land, that Fuijan Bibi cancelled the Hcba-bil-Ewaz deed by another deed dated January 5, 1963, that Fuljan possessed the land through defendant Nos.4 and 5, that ,r-Fuljan transferred 91 decimals of land from plot No. 1596 by the kabala dated August 7, 1965 to the defendant No.l and also transferred 1.79 acres of land from the ‘Kha’ schedule by the kabala dated March 28, 1967 to the defendant Nos.4 and 5, that the defendants arc in possession of the land in suit and as such the plaintiffs suit is liable to be dismissed.

4. The trial Court dismissed the suit on the finding that plaintiff miserably failed to establish his case and that he has no right, title, interest and possession in the land in

suit.

5. On appeal the judgment and decree of the trial Court was affirmed on the finding

that plaintiff failed to prove that on the basis of the Heba-bil-Uwaz deed dated February 10, 1962 he went into possession on the land in suit and that is in possession of the land in suit.

6. Thereupon the plaintiff moved the High Court Division in revisional jurisdiction.

The High Court Division discharged the Rule on the finding that the finding made by the Courts below as to that plaintiff has no title and possession in the land in suit is based on correct appreciation of the evidence on record and that finding so arrived at by the Courts below do not suffer from mis-reading or non-consideration of the evidence. It has been observed by the High Court Division that from the petitioner’s side it was not pointed out that the findings and decisions of the Courts below were based on mis-reading or nonconsideration of the evidence. The High Court Division has discharged the Rule on

the finding that plaintiff being out of possession of the land in suit the suit framed was not maintainable and that in dismissing the suit Courts below did not commit any error calling for interference by the High Court Division.

7. We have heard the learned Advocate and perused the materials in the record. It has concurrently been found by the appellate Court as well as by the trial Court that plaintiff miserably failed to prove his possession in the land in suit. It may be mentioned the suit was for mere declaration of title. Since the plaintiff failed to prove his possession in the land in Suit we arc of the view High Court Division as well as the Courts below have correctly held that the suit was not maintainable. The learned Advocate for the petitioner Could not point out that the finding so arrived at by the Court of facts suffers from any error or thai the same has been made upon misreading or non-consideration of the evidence. Since the finding of fact arrived at by the Court of facts were based on correct

appreciation of the evidence or in other words was not bad for non-consideration or mis-reading of the evidence we are of the view the High Court Division has committed no error in not interfering with the judgment of the Court of appeal.

8. In that state of the matter we do not find any merit in the petition.

9. Accordingly the petition is dismissed.

Source : V ADC (2008),595

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