Appellate Division Cases
Md. Akbor Hossain and others ……………………………….. Petitioners
Md. Safiruddin and others……………………………………… Respondents
Md. Ruhul Amin, J.
M.M. Ruhul Amin, J
DATE OF JUDGMENT
20th April, 2005
The State Acquisition and Tenancy Act, Section 143A
Created a kabala in their favour fraudulently by showing the same to have been executed by Kancha Mai though they never claimed the suit land by virtue of that fraudulent kabala nor did they any try to take possession of the suit land during their life time on the basis of the said kabalas (2)
And the rent receipts showing payment of the rents to the Government are not documents
of title (5)
Being aggrieved the petitioners who are heirs of Ulfa Mai filed aforesaid Civil Revision Nos. 6923 & 6922 of 1991 in the High Court Division obtained the Rules but after hearing the High Court Division discharged the Rules holding that the only point for determination was whether the oral gift was a genuine one and that the appellate court properly held that no where within the four corners of the pleadings the date and months of the alleged oral gift has been mentioned (6)
Nawab AH, Advocate-on-Record. For the Petitioners (In both the cases) Not represented For the Respondents.
1. MD. TAFAZZUL ISLAM, J. These petitions for leave to appeal arise out of the judgement and order dated 21.07.2003 passed by a Single Bench of the High Court Division in Civil Revision Nos. 6922 & 6923 of 1991 affirming the judgment and decree dated 18.8.1985 passed by the learned Subordinate Judge ( now Joint District Judge), Rangpur in Other Appeal No. 33 of 1983 upon setting aside those dated 30.12.1982 passed by the 2nd Court of Munsif, Rangpur, in Other Suit No.495of 1981.
2. Ulfa Mai the predecessor of the petitioner Nos. 1-5 brought the above Other Suit No. 495 of 1981 against the defendant respondents praying for declaration of title in the suit land, measuring 6.59 acre, stating inter alia the land, measuring an area of 8.82 acres appertaining to C. S. record No 96 originally belonged to one Shialo Sheikh who out of this land transferred 6.59 acres of land by executing a Heba Bill Ewaz deed dated 24.4.1958 A. D. to one Kancha Mai and delivered possession of the same to her and Kancha Mai after enjoying the same for about four years gifted orally the same to her youngest issue the plaintiff on 1st Jaistha, 1348 B. S. in presence of witnesses and also delivered possession of the same to her immediately divesting herself from all interest and since then the plaintiff has been possessing the same on cultivating the same through her husband and also by paying rents to superior landlords and her name has been correctly recorded in R.S. Khatian No. 104 during the last R.S. operation; the aforesaid Kancha Mai, under the influence of her sons Derajuddin and Reyazuddin, on 15th Jaistha 1349 B.S. demanded back the lands from the plaintiff and she having refused. Kancha Mai got furious and brought Money Suit No. 56 of 1943 in the First Court of Munsif Rangpur against the husband of the plaintiff and others but the above suit abated due to the death of Kancha Mai; subsequently it transpired that Derajuddin and Rayazuddin on 24.11.1943 A. D. created a kabala in their favour fraudulently by showing the same to have been executed by Kancha Mai though they never claimed the suit land by virtue of that fraudulent kabala nor did they any try to take possession of the suit land during their life time on the basis of the said kabalas; the plaintiff has exchanged 1.19 acres of land out of the suit land with equal quantity of lands of the defendant No. 17 Shamsuddin for their mutual benefit by registered exchange deed dated 5.8.1974 and by virtue of the exchange, Shamsuddin took possession of the exchanged lands, then the heirs of Shialo Sheikh namely Bakhtar Ali and others filed Miscellaneous Case No. 113 of 1970 under section 143A of the State Acquisition and Tenency Act against the plaintiff for correction
of the R.S. record claiming/16/ annas interest in the suit land but the said case was dismissed, the respondent Nos. 1-12 also filed Miscellaneous Case No. 873 of 1969 praying for deleting the name of the plaintiff from the R.S. record claiming that the said R.S. record is wrong which being allowed by the learned Munsif the plaintiff preferred Miscellaneous Appeal No. 9 of 1972 which on contest was allowed in part because of misconstruction of law and fact and being emboldened by those judgments, the respondent Nos. 112 made an attempt to take possession of the suit lands forcibly but without any success and that they with a view to taking forcible possession of the suit land conspired with other defendants to create some fictitious sale deeds without any consideration and hence the suit.
3. The respondent Nos. 1-6 contested the suit by filing joint written statement stating inter
alia that Kancha Mai sold the suit land to her sons Darajuddin and Reyazuddin by registered kabala dated 24.11.1943 and Derajuddin and Reyazuddin while possessing the suit land in their own right died leaving their heirs, the respondent Nos. 1-12 being minors and helpless the plaintiff reared them up and managed and looked after their properties and during the revisional settlement operation, the husband of the plaintiff taking advantage of the above situation recorded the suit land in the name of the plaintiff wrongly and afterwards the respondent Nos.1-12 filed a miscellaneous case under Section 143A of the State Acquisition and Tenancy Act which was allowed and on appeal the learned Appellant court allowed the appeal partly and ordered for recording the name of the plaintiff along with the respondents as because the plaintiff was also a heir of Reyazuddin, who left only a daughter, namely the respondent No 5 Tasiran Nessa and that the respondents since then have been possessing the suit lands in ejmali with Nabiruddin. predecessor-in-interest of the respondent Nos. 2 to 5. Tasiran Nessa (respondent No.5 ) sold .33 acres of land from the suit land to the respondent Nos.13-16 and the said Nabiruddin and also Safiruddin, the respondent No.l sold 2.12 acres of land to the defendant No. 17 who has been possessing the same by constructing his house thereon and cultivating the rest.
4. Sherifuddin defendant No. 1 and Nabiruddin, predecessor- in-intcrest the opposite party Nos. 2 to 5 and Tasiran Nessa opposite party No. 5 also filed a partition suit being Other Suit No. 308 of 1977 for 10/10 pies share in the suit land against the heirs of the plaintiff.
5. The learned Munsif, Rangpur, who heard both suits analogously, decreed Other Suit No. 49 of 1989 anddismissed the Other Suit No. 308 of 1977 with findings that the suit land is not the joint or ejmali property of the plaintiff and the defendants and that the plaintiff III fa Mai has got /16/ annas right, title and interest in the suit land and the defendants have no right, title and interest and possession in the suit land and the defendants have no right, title and interest and possession in the suit land and that other Suit No. 308 of 1977 is barred by section 42 of the Specific Act. that the plaintiff. Ulfa Mai, has possession over the suit land and the defendants have no possession and that the order passed in Miscellaneous Case No.873 of 1969 under section 143A of the State Acquisition and Tanancy Act and the order passed in Miscellaneous Case No. 9 of 1972 and the rent receipts showing payment of the rents to the Government are not documents of title. The defendant Nos. 1 to 6 then preferred -:her Appeal No. 33 of 1983 and the learned subordinate Judge, Rangpur heard the above appeal analogously with the Other Appeal No. 32 of 1983 which was in time preferred by the plaintiffs of the Other Suit No. 308 of 1977. and after hearing the learned Subordinate Judge, allowed the above appeal and dismissed the suit on contest with cost, on the findings that the judgment and order passed in Miscellaneous Case No. 873 of 1969 under section 143A of the State Acquisition and Tenancy Act and in Miscellaneous Appeal No. 9 of 1972 operate as resjudicate and that there is no evidence to prove conclusively that the plaintiff got the land by oral gift from her mother and it was further held that the husband of the plaintiff taking advantage of the minority and helplessness of the defendants recorded the suit land in the name of his wife.
6. Being aggrieved the petitioners who are heirs of I’lfa Mai filed aforesaid Civil Revision Nos. 6923 & 6922 of 1991 in the High Court Division obtained the Rules but after hearing the High Court Division discharged the Rules holding that the only point for determination was whether the oral gift was a genuine one and that the appellate court properly held that no where within the four corners of the pleadings the date and months
of the alleged oral gift has been mentioned.
7. The learned counsel appearing for the petitioner submits that the High Court Division failed to consider that in the written statements as well as in the evidence of witnesses of the defendants it was categorically stated that Kancha Mai gifted the suit property to her daughter Ulfa Mai on the 1st of Jaistha. 1348 B.S. in presence of witnesses and others and also delivered possession to her. but this was not at all noticed and considered which resulted on failure of justice and the High Court Division without going to the record upheld the wrong and illegal findings of the court of appeal and did not at all consider the evidence of the possession and other litigation as were existing between the parties and that the plaintiffs could not prove their possession in any way and in any manner and they never paid any rent to the superior landlord and further the High Court Division, other than oral gift, has not considered other points including the plea of exclusive and hostile possession of the defendant petitioner as against the plaintiff since 1348 B.S.
8. As it appears the High Court Division discharged the Rule holding as follows:I have already mentioned earlier that no where within the four corners of the pleadings of the defendants respondent No. 1 the date and months of the alleged oral gift is mentioned”
The appellate court has also arrived at a positive finding to the effect:”considering the oral evidence on record on the point of oral gift I am unable to believe that KanchaMai ever made any oral gift in favour her daughter and respondent No. 1.
9. It is also on record that the learned Subordinate Judge, (now Joint District Judge) in deciding the appeal arrived at a positive finding to the effect:” Accordingly I am of the opinion that the learned Munsif totally misconceived the facts as well as related provisions of law to the present case and as such illegally dismissed the suit for partition against the plaintiff appellants.”
10. In view of the aforesaid finding of the High Court Division as well as the findings arrived at by the appellate court below as a last court of facts and also in view of the difficulty faced by the learned Advocate for the petitioner to assail the aforesaid findings in any manner we are of the view that the High Court Division on correct appreciation of law and facts gave its decision which does not call for any interference.
The petitions are dismissed.
Source: III ADC (2006) 730