Appellate Division Cases
(Civil)
PARTIES
Md. Baker Miah and others ……………….Appellants
-Vs-
Shamsun Nahar Begum ………………….Respondent
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 16th July 2006
Fact having not been established there was no question of inheriting Zeon Bibi’s property by Abdul Hamid and as such Kamaruddin by purchase from Abdul Hamid did not acquire any interest in the land in suit and consequent thereupon on Kamaruddin’s death his heirs or successors-in-interest including the defendants did not acquire any interest in the land in suit. It was contended from the defendants’ side that the High Court Division as well as the courts below were not correct in holding that defendants’ document on the basis of which they are claiming right, title, interest and possession in the land in suit were not proved. It has already been held by us that Abdul Hamid did not inherit any property from his sister Zeon Bibi and as such by purchase from Abdul Hamid, Kamaruddin did not acquire any interest in the land of Zeon Bibi…………………. (12)
Civil Appeal No.282 of 2002 (From the Judgment and Order dated August 21,2001 passed by the High Court Division in Civil Revision No. 4139 of 1999)
For the Appellants…………………. A.J. Mohammad Ali, Attorney General, instructed by Md. Nawab Ali, Advocate-on-record
For the Respondent………….. Abdul Wadud Bhuiyan, Senior Advocate, instructed
by A.S.M. Khalequzzaman, Advocate-on-record
JUDGMENT
1. Md. Ruhul Amin J : The appeal, by leave, is by the defendant Nos. 3 and 4 against the judgment dated August 21, 2001 of a Single Bench of the High Court Division in Civil Revision No. 4139 of 1999 discharging the Rule obtained against the judgment and
decree dated May 9,1999 of the 2nd Additional Court of Assistant Judge, Dhaka in
Title Suit No.26 of 1998 decreeing the same.
2. The suit was filed seeking declaration to the extent of 4 annas share in the land in suit. The plaintiff in his share claimed .0575 arzutangsha out of .09 decimals of land which is the subject matter of the suit. It was the case of the plaintiff that certain Yousuf AH was the owner of the land in suit. He died leaving widow Fatema Bibi, brother Abdul Barek,
mother Hayatunnessa and daughters namely Daulat Bi, Ratan Bi and Mohor Bi, that
Fatema Bibi died leaving Abdul Barek, Hayatunnessa and the three daughters, that on
the death of Fatema Bibi Abdul Barek, Hayatunnessa, Daulat Bi, Mohor Bi and Ratan
Bi sold their interest to Zeon Bibi who died leaving son Awlad Hussain who died leaving
sons Taleb Hossain and Monir Hossain, that Taleb Hossain died leaving the plaintiff and
the brother Monir Hossain, that certain Kamaruddin in respect of the land in suit got
S.A. record prepared in his name and lateron upon the said matter a ‘salish’ was held and as per award of the ‘salish’ plaintiff got her name mutated in the S.A. record and thereupon paying rent, that as the S.A. record was prepared wrongly in the name of Kamaruddin, as such to avoid future complications the plaintiff is constrained to file the suit.
3. The suit was contested by the defendant Nos. 3 and 4 by filing written statement denying the material allegations made in the plaint and stating, inter alia, that Zeon Bibi while owning and possessing the land her son Awlad Hossain died and as such Awlad
Hossain did not inherit any property from Zeon Bibi and consequent thereupon Awlad
Hossain’s son Taleb Hossain and Monir Hossain did not acquire any interest in the land owned by Zeon Bibi, that on the death of Zeon Bibi her brother Abdul Hamid inherited
the property left by Zeon Bibi, that he sold the land in suit to Kamaruddin on February 8,
1950, that to avoid future complications Kamaruddin obtained kabala from Taleb
Hossain, father of the plaintiff on September 6,1950 and thus became the owner of the land in suit and accordingly got the S.A. record prepared in his name, that Kamaruddin died leaving 6 daughters by name Shahida, Rashida, Shakila, Rana, Falani and Swriti and
two brothers by name Zamiruddin and Alimuddin, that upon amicable arrangement
between the co-sharers Zamiruddin got the land in suit and possessed the same, that after
death of Zamiruddin the defendants got the land in suit by amicable settlement amongst
the heirs and are possessing the land in suit, that plaintiff has no right, title and interest and possession in the land in suit, that the plaintiff has filed the suit making untrue statements and as such the same is liable to be dismissed.
4. The trial Court decreed the suit on the findings that the suit is maintainable and not
barred by limitation, that the kabala dated September 6, 1950 by which Kamaruddin said
to have purchased the land in suit from Taleb Hossain has not been proved and as such by
the said kabala Taleb Hossain’s right in the land in suit was not affected, that there is no
dispute that plaintiff is the daughter of Taleb Hossain and that defendant’s contention that
Tableb Hossain’s father Awlad Hossain died before her mother Zeon Bibi has not been
established and as such plaintiff has right, title and interest in the land in suit, that the plaintiff by reliable evidence, both oral and documentary, has established her possession in the land in suit and the papers filed by the defendants in support of their claim of possession in the land in suit are not related to the holding number of the land in suit, that plaintiffs suit is not bad for defect of party, that the plaintiff has been able to prove his case and as such entitled to the relief prayed for.
5. The contesting defendants went on appeal. The appellate Court on independent discussions of the evidence, both oral and documentary, concurred with the findings and decisions of the trial Court and thereupon dismissed the appeal. Thereupon the defendants moved the High Court Division in revisional jurisdiction and obtained the Rule. The High Court Division discharged the Rule on the findings that although defendants contended that plaintiffs father Awlad Hossain died before her mother Zeon Bibi but they failed to prove the said fact and the finding arrived at by the courts below that Zeon Bibi died leaving her son Awlad Hossain who died leaving sons Taleb Hossain and Monir Hossain is based on evidence, that kabala dated September 6, 1950 by which Kamaruddin said to have purchased the land from Taleb Hossain having not been proved the same has not affect the title of Taleb Hossain and consequently has also not affected the title of the plaintiff in the property of Taleb Hossain, that finding of the courts below as regard the possession of the plaintiff is based on evidence and the said finding if the courts below does not suffer from mis-reading and non-consideration of the evidence on record, that the trial Court as well as the appellate Court on consideration of the evidence of P.W.2 in its entirety has correctly held that the said witness has stated that plaintiff is in possession of the land in suit, that plaintiffs possession in the land in suit is supported by the evidence of other P.Ws. as well as by the documentary evidence.
6. Leave was granted to consider the submissions that plaintiff although claimed possession through the tenants but none of such of the tenants was examined to prove plaintiff’s possession in the land in suit, whereas the defendants by the evidence of D.Ws.4, 5 and 6 who are tenants in the land in suit proved possession of the defendants but the trial Court as well as the appellate Court without discussing and considering the evidence of P.Ws. and on the weakness of the case of the defendants decreed the suit, the High Court Division did not consider this aspect of the case and thus committed error of law in discharging the Rule without considering that none of the courts below recorded any finding as to the proof of title by the plaintiff but decreed the suit on the alleged failure of the defendants to prove their title, that having regard to the pleadings of the plaintiff in that at the first instance it was the case of the plaintiff that plaintiff’s predecessor died before her mother leaving sons Taleb Hossain and Monir Hossain but by amendment the plaintiff introduced a new story that Zeon Bibi died leaving son Awlad who died leaving sons Taleb Hossain and Monir Hossain and that on the death of Taleb Hossain plaintiff got 4 annas share in the property of Taleb Hossain and as such the courts below were in error in decreeing the suit on the aforesaid assertion of the facts and on the untenable plea and on the untenable ground that defendants were required to prove the same and thus wrongly shifted the onus on the defendants and thereby caused failure of justice, that because of the contradictory nature of pleading of the plaintiff as to death of Zeon Bibi preceding her son Awlad Hossain the High Court Division as well as the courts below were in error in presuming that the plaintiff has acquired title through devolution without any evidence produced by the plaintiff to that end and as to her dealing with the property in any manner whatsoever and without prove of fact of death of Awlad Hossain after the death of her mother Zeon Bibi, that defendants produced the original document of title from their custody namely registered deed dated 8.2.1950 and 6.9.1950 which are being document of over 30 years the High Court Division was in error in holding that the courts below on proper consideration of the evidence correctly held that the kabala of the contesting defendants said to have been executed and registered by Taleb Hossain was not established as genuine and thereby committed serious error affecting the judgment.
7. The learned Counsel for the appellants in support of the appeal upon reiterating the contentions for the consideration whereof leave was obtained by the appellants also submitted that finding as to title and possession by the High Court Division as well as the courts below were arrived at without discussing evidence and the findings that defendants’ documents on the basis whereof they are claiming title and possession were not proved by them is contrary to the materials on record or in other words the Court was not correct in holding that defendants failed to prove their documents on the basis whereof they claimed title in the land in suit and the courts below have decreed the suit of the plaintiff on the defendants’ failure to prove their case.
8. As against that it has been submitted on behalf of the Respondent that the High Court
Division as well as the Courts below upon due consideration and appreciation of the evidence correctly held that plaintiff has right, title, interest and possession in the land in suit. The learned Counsel has also submitted that plaintiff by reliable evidence has established that her grandfather Awlad was alive when Zeon Bibi, mother of Awlad Hossain died. It has also been submitted on behalf of the Respondent that holding number of the suit land is 53, but the papers filed by the defendants in support of the claim of title and possession in the land in suit are of holding No.53/1. Lastly it has been submitted that as the plaintiff was successful in proving her right, title, interest and possession in the land in suit the case put forward from defendants’ said that on the death of Zeon Bibi his brother Abdul Hamid inherited the property in suit and he sold the same to Kamaruddin and that to avoid complications Kamaruddin obtained document from Taleb Hossain in respect of the land in suit and successors-in-interest including the defendants possessed the land in suit has rightly been held by the High Court Division as well as the courts below is not correct.
9. The contention of the learned Counsel for the appellants that the High Court Division as well as the courts below decreed the suit on the weakness of the case of the defendants or in other words failure on the part of the defendants to prove their case the Courts have
decreed the suit of the plaintiff is not correct since from the judgment of the High Court
Division as well as of the courts below it is seen that the said Courts on appreciation of
the evidence, both oral and documentary, arrived at the finding that plaintiff proved her
case and thereupon decreed the suit. It is seen from the judgments of the trial Court and the appellate Court that while the said Courts decreeing the suit did not set forth the deposition of the witnesses of the parties but we find from the judgments of the said Courts that the said Courts appreciated evidence led from the side of the parties in suit and thereupon disposed of the suit and the appeal. The trial Court while arriving at the finding as to possession of the parties considered the evidence both oral and documentary. The document filed by the defendants in support to their contention of possession of the land in suit it was found by the trial Court that those do not relate to the suit holding since number of the suit holding is 53 but the papers filed by the defendants relate to holding No.53/1. This being the position the trial Court in our view was quite correct in holding that the papers filed by the defendants in support of their claim of possession in the land in suit being of different holding do no way proved defendants’
possession in the land in suit.
10. It was the case of the defendants that Zeon Bibi had a son Awlad Hossain who had two sons Taleb Hossain and Monir Hossain and Awlad Hossain died before his mother Zeon Bibi and as such Awlad Hossain’s heirs Taleb Hossain and Monir Hossain did not inherit the property of Zeon Bibi since he was survived by her brother Abdul Hamid and on the death of Zeon Bibi her property devolved upon Zeon Bibi’s brother Abdul Hamid. It may be mentioned plaintiff is claiming the property in suit as daughter of Taleb Hossain. Since defendants urged upon the Court to accept their contention that Zeon Bibi’s son Awlad was not alive when Zeon Bibi died and as such Awlad’s sons Taleb Hossain and Monir Hossain did not inherit the property of Zeon Bibi the defendants under the provision of the Evidence Act was required to establish that fact but from the defendants’ said no reliable evidence was brought on record for the establishment of the said fact. This being the position in our view trial Court as well as the lower appellate Court and lastly the High Court Division was quite correct in holding that plaintiff inherited the property of her father Taleb who as son of Awlad Hossain had interest in the land in suit.
11. The plaintiff in support of her case that Zeon Bibi died leaving her son Awlad Hossain deposed as P.W.I and that fact indirectly has been established through the evidence of P.Ws. 2-5 who have stated that plaintiff got the property as heir of Taleb Hossain. As stated hereinbefore Taleb Hossain is the son of Awlad Hossain who got the property in suit from her mother Zeon Bibi. As against the said evidence of the P.Ws. from the defendants’ side no evidence was brought on record to show that the evidence of the P.Ws. is not correct or in other words to establish that plaintiffs predecessor Awlad Hossain son of Zeon Bibi died before Zeon Bibi. It has also been submitted by the learnd Counsel for the appellants that plaintiff initially stated in her plaint that Zeon Bibi died leaving her grand sons Taleb Hossain and Monir Hossain through her son Awlad Hossain but lateron the plaintiff upon amendment introduced a quite different story to the effect that Abdul Barek, Hayatunnessa, Daulat Bi, Mohor Bi and Ratan Bi by the kabala dated April 4, 1940 sold the land left by Yousuf AH to Zeon Bibi and she died leaving only son Awlad Hossain and he died leaving sons Taleb Hossain and Monir Hossain andTaleb Hossain died leaving plaintiff and his brother Monir Hossain and thus Plaintiff inherited .0575 arzutangsha or in other words . 5 decimals of land and the same is the land in suit and as such the Court was in error in acception the story so introduced by amendment and lateron in allowing to lead evidence in support thereof. The submission so made merits on consideration since no material is on record to show that amendment so sought by the plaintiff and allowed by the Court was challenged from the defendants’ side, rather it is seen that defendants upon accepting the amendment made by the plaintiff contested the suit. It may be mentioned it was the case of the defendants that Zeon Bibi’s property was inherited by her brother Abdul Hamid and he sold the property so inherited by him from Zeon Bibi to Kamaruddin to avoid future complications obtaind a kabala on September 6, 1950 from Taleb Hossain as regard the property left by Zeon Bibi and that Kamaruddin while owning and possessing the property so purchased from Abdul Hamid and Taleb Hossain died leaving two brothers and six daughters and that upon amicable partition Kamaruddin’s brother Zamiruddin got the property in suit and said Zamiruddin died leaving 5 daughters and upon amicable partition amongst the said heirs of Zamiruddin defendant Nos.l and 2 got the land in suit. As stated hereinbefore from the defendants’ side no evidence was brought on record, that Zeon Bibi’s son Awlad Hossain died before her.
12. The said fact having not been established there was no question of inheriting Zeon
Bibi’s property by Abdul Hamid and as such Kamaruddin by purchase from Abdul Hamid
did not acquire any interest in the land in suit and consequent thereupon on Kamaruddin’s
death his heirs or successors-in-interest including the defendants did not acquire any
interest in the land in suit. It was contended from the defendants’ side that the High Court
Division as well as the courts below were not correct in holding that defendants’ document on the basis of which they are claiming right, title, interest and possession in the land in suit were not proved. It has already been held by us that Abdul Hamid did not inherit any property from his sister Zeon Bibi and as such by purchase from Abdul Hamid, Kamaruddin did not acquire any interest in the land of Zeon Bibi. It was the case of the defendants that Kamaruddin also made purchase from Taleb Hossain son of Awlad Hossain who got the property from his mother Zeon Bibi. The defendants to prove the document which said to have been executed and registered by Taleb Hossain on September 6, 1950 in respect of the property he inherited from his father Awlad Hossain who inherited the property of Zeon Bibi have not examined any witness i.e. the attesting witness of the kabala nor the scribe of the kabala. In that state of the matter we are of the view High Court Division as well as the courts below were quite correct in holding that defendants did not prove their documents on the basis of which they are claiming the land in suit. It was submitted by the learned Counsel for the appellants that defendants proved their claim of possession in the land in suit through the evidence of D.Ws.4, 5 and 6. It may be mentioned the admitted fact is that holding number of the land in suit is 53 and that fact finds place in the evidence of D.Ws. 1,2,3 and 5. It is in the evidence of D.W.4 that he does not know who filed the suit against whom. D.W.5 has deposed that the number of the suit holding is 53 and D.W.6 has stated that his son is the tenant of the defendants. This being the evidence of the said witnesses as regard the possession as claimed by the defendants in respect of the land in suit the High Court Division and the
courts below have quite correctly discarded the evidence of the said witnesses through
whom defendants tried to prove their claim of possession in the land in suit.
13. In the background of the aforesaid discussions we find no merit in the appeal.
14. Accordingly the appeal is dismissed without costs.
Ed.
Source: IV ADC (2007), 1