Md. Alauddin Kazi and others Vs. Government of Bangladesh and another (Sheikh Abdul Awal, J.)

HIGH COURT DIVISION

(Civil Revisional Jurisdiction)

Code of Criminal Procedure (V of 1908)

Section 115

The finding of the court of appeal below and the trial court as well is contrary to the evidence on record and also is a product of misreading and non-consideration of material evidence on record in as much as in the present case the plaintiff had produced their kabala, S.A. Khatian and the rent receipt in the trial court to show their continuous possession but the courts below failed to consider the same as a result of which the judgment  and decree of the Court below is set aside  and the suit is decreed.                                       … (26 & 31)

Abul Bakar Siddique Vs. A.D.C. Kurigram and others, 48 DLR(AD) 154; Abdul Mazid Howlader and another Vs. Lahajuddin Howlader and others, 48 DLR(AD) 160; Rajkumari Baishnabi Vs. Shyama Bibi in Calcutta Weekly Notes (Volume 25) 165; Bangladesh Vs. Tabarak Ali Mia and others 43 DLR(AD) 130; Akrab Ali and others Vs. Zahiruddin Kari and others 30 DLR(SC) 81; Erfan Ali Vs. Joynal Abedin Mia 35 DLR(AD) 216, 2 BLC(AD) 134 ref.

Mr. Mokhlesur Rahman with

Mr. S. A. Hasan, Advocates

….For the petitioners.

Mr.Md.Abdus Salam Mondal, D.A.G. with

Mr. Arobinda Kumar Roy, A.A.G.

….For the opposite parties.

Judgment

Sheikh Abdul Awal, J.

        This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 9.11.2008 passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No. 825 of 1999 affirming those dated 17.10.1999 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.16 of 1988 dismissing the suit should not be set-aside.

1. 2.           Material facts of the case as necessary for disposal of the Rule are that  the petitioners as plaintiffs brought the aforesaid suit being Title Suit No. 16 of 1988 in the Court of the then  Subordinate Judge, 1st Court, Dhaka for declaration of title of the suit as described in schedule to the plaint comprising of  .62 acres under Mouza-Uttarkhan, C.S. Khatian No.145, Dag No. 1481. The plaintiff’s case, in short, is that the suit land was originally belonged to Bhawal Court of Wards Estate who  granted pattan in favour of the plaintiffs on payment of Tk. 26/- as salami; that the plaintiffs thereafter, on the basis of the said pattan mutated their name, paid rents to the Government regularly  and during last S.A. operation their names were rightly recorded in the S.A. Khatian No. 13; that when the pattan was granted in favour of the plaintiffs, the nature of the suit land was a pond and after taking pattan the plaintiffs filled up half portion of the suit land by earth-filling and built dwelling house thereon  and the rest being cultivable land under their possession; that during last R.S. operation the suit land was wrongly recorded as khas land of the Government as a result of which Settlement Case being No. 54/86-87 was started with Chandpara Shahi Moshjid and thereupon, notices were served upon the plaintiffs infringing their right and title. Hence, the suit.
2. 3.           The defendant contested the suit by filing written statement denying most of the averments of the plaint  contending, inter-alia, that the suit land was  originally belonged to Bhawal Court of Wards Estate and subsequently, the same was recorded as khas land of the Government; that the suit is barred by limitation and during last R.S. operation the record of right was rightly prepared and published in the name of the Government and later on, the Government leased out the property in favour of the Chandpara Shahi Moshjid Comm-ittee  through  Settlement Case No. 54/86-87. The suit land was never gave pattan by the Bhawal Court of Wards Estate in favour of the plaintiffs, the plaintiffs have no right, title and interest of the suit land and as such the suit is liable to be dismissed.
3. 4.           The trial Court on  the pleadings of the parties framed the following issues for determination  namely:

(i)   whether the suit is maintainable in its present form   and manner?

(ii)  whether the case is barred by limitation?

(iii) whether the plaintiffs have right, title and possession   in the suit land?

(iv) whether the settlement case in question was void, illegal and beyond jurisdiction?

(v)  whether the plaintiffs are entitled to get decree, as prayed for?

1. 5.           During trial plaintiffs examined 3 (three) witnesses and exhibited a series of documents and defendant side examined 1 (one) witness to prove their respective cases.
2. 6.           The  trial Court  below on consideration of the materials on record dismissed the suit by its judgment and decree dated 17.10.1999 (decree signed 27.10.1999) on the findings, inter alia, that the plaintiffs  neither proved  their right, title and possession in the suit land nor proved their pattan (Ext.1) by adducing evidence.
3. 7.           The unsuccessful plaintiffs then  preferred   an appeal being Title Appeal No. 825 of 1999 before the learned District Judge, Dhaka which was ultimately heard by the learned   Additional District Judge, 5th Court, Dhaka,  who by his judgment and decree dated 9.11.2008 affirmed the decision of the trial Court below holding that the plaintiffs could not prove that the pattan (Ext.1) was granted by the Bhawal Court of Wards Estate in favour of the plaintiffs.
4. 8.           Being aggrieved by the aforesaid judgment and decree dated 9.11.2008 the plaintiff-appellant-petitioners have come before this Court and obtained the present Rule.
5. 9.           Mr. Mokhlesur Rahman, the learned Advocate appearing for the petitioners in the course of his argument after placing the judgments of two Courts below, deposition of witnesses, exhibits and other relevant materials on record submits that judgments of both the Courts below are not in fact based on correct evaluation of facts and materials of the case and as such the impugned judgment and decree  are liable to be set aside.  He next submits that the plaintiff-petitioners in support of their claim proved as many as 4(four) vital documents namely; (i) pattan dated 4.4.1939 (Ext.1), (ii) 5(five) rent receipts (Ext. 2-2Gha), (iii) S.A. Khatian (Ext.3) and (iv) rent receipt under S.A. Khatian (Ext.4) but both the Courts below mere on surmise and conjecture mechanically held that the plaintiffs could not prove their pattan  as well as  right, title and possession in the suit land by educing evidence.
6. 10.       Referring to the deposition of sole D.W-1, Mr. Mokhlesur Rahman contends that it is apparent from the evidence of sole D.W-1  that this witness in his deposition admitted that the S.A. Khatian of the suit land was prepared in the name of the plaintiff-petitioners and there is nothing on record  to suggest that the Government leased out the suit property in favour of Chandpara Shahi Moshjid Committee and as such the judgment of both the Courts below are based on  gross misreading and misinterpretation of material evidence on record. He  also submits that both the Courts below ought to have decreed the suit inasmuch as the plaintiffs examined as many as 3(three) witnesses and all of them in their respective testimony categorically testified that the plaintiffs got the suit land by way of pattan dated 4.4.1939 granted by Bhawal Court of Wards Estate (Ext.1), mutated their name and  since then  the plaintiffs have been possessing the suit land by paying rent  regularly to the Government as direct tenant of the Government. Mr. Rahman, finally submits that taking rent from the plaintiff-petitioners it does not lie in the mouth of the defendant opposite party No. 1 that the suit property was vested in the Government and the plaintiffs are not in possession over the suit property.
7. 11.       On the other hand, Mr. Md. Abdus Salam Mondal, the learned Deputy Attorney General appearing for the Government by filing counter affidavit opposes the Rule. He submits that both the Courts below on due consideration of the entire materials on record rightly arrived at a finding that the plaintiff-petitioners could not prove their right, title and possession on the basis of their  so-called unregistered pattan. He further submits that both the Courts below rightly arrived at a concurrent finding that Pattan (Ext.1) was forged, collusive and illegal document which has never been acted upon and as such question of interference does not arise at all.
8. 12.       I have heard the learned Advocate and the learned Deputy Attorney General at length and perused the judgments of two Courts below, deposition of witnesses and other materials on record. To appreciate the contentions of the learned Advocate and the learned Deputy Attorney General, it is necessary to scrutinize the material evidence on record  to arrive at a correct decision whether both the Courts below committed any illegality in holding that the plaintiff-petitioners having failed to prove their right, title and possession on the basis of Ext.1 (Pattan).
9. 13.       Plaintiff No. 1, Alauddin Kazi himself was examined as PW-1, who in his deposition stated that: bvwjkx m¤úwË fvIqvj †KvU© Ae IqvW©m Gi Lvm m¤úwË wPj| Avwg 4/4/1939 Zvwi‡L 26/- (QvweŸk) UvKv †mjvgx w`‡q bvwjkx m¤úwË cËb †bB| Avwg Avgvi bvg Rvix Kwi| LvRbv †`B| cËb bvgxq LvRbvi iwk` 4wU `vwLj Kwijvg| weMZ Gm, G, Rwi‡ci mgq Gm, G, LwZqv‡bi Avgvi bvg my×fv‡e †iKW© nq| Gm, G, cP©vi mwn gûix bKj `vwLj Kwijvg| 992 Bs mb ch©šÍ LvRbv w`‡qwQ| LvRbvi iwk` mgyn `vwKj K‡iwQ| bvwjkx mgBˇZ Avwg `L‡j AvwQ| This witness in his deposition also stated that earlier the suit land was a pond, who  by filling earth thereon  started cultivating and fishing. This witness in his cross examination  denied that the suit property has been leased out in favour of the Chandpara Shahi Moshjid. PW-2, Abdur Rahman Kazi,  stated in his deposition that the plaintiffs got the suit property by the Bhawal Court of Wards Estate by way of pattan and the suit property was mutated in their name andS.A. record was also prepared in the name of the plaintiffs. PW-3, Kazi Lehazu-ddin, stated in his deposition that: bvwjkx m¤úwË Avgvi evox †_‡K A‡bK `y‡i| Avwg ev`x‡K wPwb| ev`xMb bvwjkx m¤úwË †fvM `Lj K‡i| bvwjkx m¤úwˇZ cyKzi K‡i I wKQz Rwg‡Z dmj Pvl K‡i ev`xMb, bvwjkx m¤úwË gmwR` KwgwU †fvM `Lj K‡i bv| This witness in his cross-examination denied the suggestion that Chandpara Shahi Mosjid Committee has been possessing the suit property.
10. 14.       DW-1, Md. Zulfiqur Ali stated in his deposition that the suit property has been leased out in favour of Chandpara Shahi Mosjid Committee though Settlement Case No. 54/86-87. This witness also stated that pattan of the plaintiffs was forged, collusive and Bhawal Court of Wards Estate never granted pattan in favour of the plaintiffs. This witness in his cross-examination admitted that S. A. kahtian  of the suit property was prepared in the name of Alauddin Kazi and Shamsuddin Kazi (plaintiffs) being Dag No. 1481. This witness in his cross-examination also stated that: bvwjkx Rwg miKvix Lvm Rwg nIqvq GUv Pvbcvov kvnx gmwR`‡K e‡›`ve¯Í †`Iqv n‡q‡Q| D³iƒ‡c Gm, G, †iKW© evwZj n‡q‡Q| H e‡›`vm‡¯Íi †Kvb KvMR `vwLj KwiwY| Bs‡iRx 1988 m‡bi eb¨vq bw_ bó nq| Bs‡iRx 1988 m‡bi eb¨vq bw_ bó nevi mg_©‡b †Kvb KvMR `vwLj KiwQ wK bv Zv g‡b co‡Q bv|
11. 15.       On a close perusal of the evidence of PW-1, PW-2, PW-3 and DW-1 together with the Exhibits namely, (i) pattan dated 4.4.1939 (Ext.1), (ii) 5(five) rent receipts (Ext.2-2Gha), (iii) S.A. Khatian (Ext.3) and (iv) rent receipt under S.A. Khatian (Ext.4), it appears that the plaintiff-petitioners in support of their right, title and possession over the suit property adduced sufficient corroborative evidence both oral and documentary. It also appears that the defendant-opposite parties could not make the case shaky of the plaintiff-petitioners by way of cross-examination.
12. 16.       Mr. Mokhlesur Rahman at the end of the day in support of his lengthy argument has referred to  some decisions reported in 2 BLC(AD) 134, 30 DLR(SC) 84, 48 DLR(AD) 160, 48 DLR(AD) 154, 43 DLR(AD) 130, Calcutta Weekly Notes (Volume 25) 165 and 35 DLR(AD) 216.
13. 17.       Now, in order to appreciate the legal  aspects involved in this case, it would be useful if I consider the   cited decisions.
14. 18.       In the case of Abul Bakar Siddique Vs. A.D.C. Kurigram and others reported in 48 DLR(AD) 154,  it has been held that:

      The learned Single Judge of the High Court Division having independently assessed the evidence and having found a case of non-consideration of material evidence on record and consequently non-reversal of material findings interfered with the finding of fact. To our mind, the revisional Court is competent to interfere in a case of non-consideration of material evidence which is specifically material for the determination of the material issue, namely, the issue of shifting of the school to the new mouza.

1. 19.       In the case of Abdul Mazid Howlader and another Vs. Lahajuddin Howlader and others reported in 48 DLR(AD) 160, it has been held that:

There being a total non-consideration of all the witnesses of the pre-emptees, the learned Single Judge acted wrongly in refusing to exercise his revisional jurisdic-tion in a case where due to non-considera-tion of the material evidence on record an erroneous decision has been arrived occasionning a grave failure of justice.

1. 20.       In the case of Rajkumari Baishnabi Vs. Shyama Bibi reported in Calcutta Weekly Notes ( Volume 25) 165,  it has been observed that:

Their Lordships passed the following judgment:- We are of the opinion that this appeal must be allowed. The learned District Judge has decided one question and one question only, namely, that the unregistered deed produced in the case was not admissible in evidence. On this ground he has held that the tenancy alleged to have been held by Shyama under Rajkumari has not been established. The District Judge, however, has overlooked that in this country it is possible to establish a tenancy without the production of a lease by proof of payment of rent by the tenant and acceptance of rent by the landlord.

1. 21.       In the case of Bangladesh Vs. Tabarak Ali Mia and others reported in 43 DLR(AD) 130, it has  observed that:

Patni taluk had its origin on the estates of the Raja of Burdwan but has since been extended to other Zamindaris. The character of this tenure is that it is a taluk (etymologically, ‘taluk’ stands for some intermediate interest being derived from ‘alak’= to suspend from) created by the Zaminder, to be held at a rent fixed in perpetuity by the lessee and his heirs for ever. Zaminder is the landlord, patnidar is his tenant. A patni although in form a lease, is not a mere lease-hold property. A patnidar may let out the lands in any manner conducive to his interest, provided his interest was subsisting.

1. 22.       In the case of Akrab Ali and others Vs. Zahiruddin Kari and others reported in 30 DLR(SC) 81, it has been held that:

      According to section 103(B)(5) of The Bengal Tenancy Act every entry in a record of rights finally published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect. The learned Judges of the High Court appear to have started with the view that the Court of appeal below was palpably wrong in presuming title in favour of the defendants from a mere entry in the records of right and that the defence having admitted title of the predecessor of the plaintiff, the plaintiff was relieved of the burden of proving the title of Aftabuddin Sarkar. Their Lordships were not correct in their view as to the effect of the entries in a finally published record of right and in relieving the plaintiff, in the face of the said entries of the burden of proving the title of Aftabuddin Sarkar. The entries in the Khatian Ext. A that Faizuddin Haji was in the occupation of the holding appertaining to the jote of Aftabuddin Sarkar on the basis of purchase for a consideration  of Rs. 50/- and that the land was fit for assessment of rent but there was no payment were not beyond the scope of the survey held under Chapter X Part 1 of the Bengal Tenancy Act, 1885.

1. 23.       In the case of Erfan Ali Vs. Joynal Abedin Mia reported in 35 DLR(AD) 216, it has been held that:

      The rent receipts were excluded from consideration by the lower Appellate Court taking the view that these are provisional receipts and that they carry little weight in that “any person interested in a land may pay rent to the Government Acquired Estate”. This view is erroneous, for rent-receipts, though not documents of title, are important items of evidence of possession and may be used as collateral evidence of title since possession generally follows title. Again, plaintiff’s name has also been recorded in the S.A. Khatian prepared in the period immedia-tely following the whole-sale state-acquisition in 1956 and all objections raised by defendant No.1 were overruled by the Revenue-officer and then by the appellate authority.

1. 24.       Thus, from all the decisions,  it is clear that a  patnidar may let out the lands in any manner conducive to his interest, provided his interest was subsisting. Rent receipts and  S.A. Khatian are evidence of possession and may be used as collateral evidence of title and a finding of fact whether concurrent or not, arrived at by the lower Court is binding on this Court, as a  Revisional Court  except in certain well-defined exceptional circumstances such as non-consideration or misreading of material evidence on record affecting the merit of the case.
2. 25.       I have already noticed that in this case, the plaintiff-petitioners in order to prove their right, title and possession in the suit property produced    so many important  documents namely, pattan dated 4.4.1939 (Ext.1), 5(five) rent receipts (Ext.2-2Gha), S.A. Khatian (Ext.3) and rent receipt under S.A. Khatian (Ext.4). The Court of appeal below by the impugned judgment affirmed the decision of the trial Court with the observation  that: c~‡e©v³ Av‡jvPbv I mvÿ¨ cÖgvb ch©v‡jvPbv‡šÍ Av`vjZ GB Awfg‡Z Av‡m †h, bvwjkx m¤úwË eve` ev`x fvIqvj †KvU© Ae IqvW©m †óU nB‡Z cËb MÖnb Kiv Ges D³ cˇbi Av‡jv‡K ¯^Z¡ cÖwZwôZ nIqv Ges D³ ¯§cwˇZ ¯^Z¡evb I `LjKvi _vKvi welqwU ev`xcÿ cÖgv‡b mg_©b nb bvB| †mBw`b †_‡K ev`x Zvnvi ¯^‡Z¡i †NvlbvgyjK wWµx cvB‡Z cv‡ib bv| weÁ wb¤œ Av`viZ Z`ªæc wm×všÍ cÖ`vb Kivq Av`vj‡Zi n¯Í‡ÿc Kivi †Kvb Kvib bvB& bvwjkx m¤úwË m¤ú~b© As‡k ev`x c‡ÿi wbisKzk `Lj bv _vKvq mywbw`©ó cÖwZKvi AvB‡bi 42 aviv g‡Z ¯^Z¡ †Nvlbvi †gvKÏgv Pwj‡Z cv‡i bv g‡g© weÁ wb¤œ Av`viZ †h wm×všÍ cÖ`vb Kwiqv‡Qb Zvnvi mwnZ AÎv`viZ GKgZ †cvlb K‡ib|
3. 26.       In the given facts and circumstances of the case and the uniform decisions of the highest Court as cited above,  I have no hesitation to hold that the above quoted finding of the  Court of appeal  below  is product of misreading and non considering the material evidence on record inasmuch as in this case the  plaintiffs had produced their kabala,  SA Khatian and rent-receipts in the trial Court to show their continuous possession but the Courts below  did not consider the same.
4. 27.       By the way,  it may be mentioned that in this case the learned Deputy Attorney General took time again and again lastly on 8.12.2011  by filing an application took time  till one week after the vacation for collecting the record of settlement case No.  54/86-87 though, he  failed to collect the same.
5. 28.       There is another aspect of the  case should also be looked into. Mr. Mokhlesur Rahman, the learned Advocate for the petitioners while elaborating his submission inviting my attention to Annexure  ‘C’ and ‘D series’ of the supplementary affidavit dated 29.11.2011  and submits that city survey khatian No. 16259,  dag No. 8219 & 8222 respectively in respect of the suit property  have been prepared in the name of the petitioners and   the Appeal Case being No. 69700 of 2002 filed by the defendant-opposite parties  under section 31 of the Bengal Tenancy Act before the settlement officer was rejected with the observation that: Òbvwjkx Rwg Avi, Gm, †iKW© Z`šÍ Kvjxb mg‡q wKfv‡e A_ev †Kvb KvM‡Ri wfwˇZ miKv‡ii 1 bs LwZqv‡b †iKW© nBqv‡Q GB g‡g© cÖkœ K‡i Rvb‡Z PvIqv nB‡j AvcxjKvix cÿ Rvbvb †h, Avi, Gm, †iKW© wKfv‡e bvwjkx Rwg †iKW© nBqv‡Q Zvnv wZwb Rv‡bb bv| GB g‡g© †Kvb KvMRcÎ †`LvB‡Z wZwb AcviMZv Rvbvb| wZwb e‡jb †h, †h‡nZz Avi, Gm †iKW© PzovšÍfv‡e cÖKvwkZ I †M‡RU weÁwcZ&i gva¨‡g miKv‡ii wbKU n¯ÍvšÍi Kiv nBqv‡Q, †m‡nZz Bnv miKvix Lvm Rwg wnmv‡e Mb¨ nB‡e| wZwb bvwjkx Rwg miKv‡ii 1bs LwZqv‡Y †iKW© Kivi `vex Rvbvb| ……AvcxjKvixc‡ÿ `vex †Iqw³K wfwË bv _vKvq Zvnv‡`i bv‡g †iKW© Kivi `vex we‡ePbv Kiv †Mj bv|Ó  And, as such at any rate judgments of both the Courts below do not deserve to be sustained.
6. 29.       To this, the learned Deputy Attorney General finds  it difficult to repel the  contention of Mr. Mokhlesur Rahman, the learned Advocate for the petitioners.
7. 30.       For the reasons stated above, I am inclined to hold that both the Courts below erred in law in passing the judgments under challenge without following the correct principle relating to the appreciation of the evidence  and materials on record and the same has resulted in an error in the impugned decisions occasioning failure of justice.
8. 31.       In the result, the Rule is made absolute without any order as to costs. The impugned judgment and decree dated 9.11.2008 (decree signed on 9.11.2008) passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No.825 of 1999 affirming those dated 17.10.1999 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.16 of 1988 dismissing the suit is set aside and thus,   the suit is decreed.

        Let a copy of the judgment along with the lower Court’s record be sent down at once.

Ed.