Md. Delwar Hossain Akter & another Vs. Md. Nazrul Islam Khan & others

Appellate Division Cases

(Civil)

PARTIES

Md. Delwar Hossain Akter & another…………. Petitioners.

-Vs-

Md. Nazrul Islam Khan & others……………. Respondents.

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 29th August 2006

For declaration of title and recovery of khas possession in the suit land……… (2)

The High Court Division held that the plaintiffs’ case is that they were in possession

of the suit land by purchase from one Mrs. Monju Rejina D-Costa but they were dispossessed from the suit land by the defendants. But they could not prove their possession and alleged dispossession by the defendants as claimed by them and that the plaintiffs must prove that the suit was brought within 12 years from the alleged dispossession. Since the plaintiffs could not prove that the suit was brought within

12 years from the date of alleged dispossession, the suit was found to be helplessly barred by limitation. Accordingly, the High Court Division found that the findings of fact on question of possession and dispossession and also on question of limitation as arrived at by the court of appeal which is the final court of facts were based on proper consideration and appreciation of the material evidence on record and there is no misreading and non-consideration of the materials on record by the court of appeal below. Accordingly, the High Court Division discharged the Rule. ………………….(6)

The leave petition is dismissed…………….(8)

Syed Mahbubur Rahmen, Advocate-on-Record………………… For the Petitioners

Respondent………………. Not represented.

Civil Petition For Leave To Appeal No.918 of 2005

(From the judgment and order dated 08.05.2005 passed by the High Court Division in Civil Revision No.3794 of 2000.)

JUDGMENT

M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 08.05.2005 passed by a Single Bench of the High Court Division in Civil Revision No.3794 of 2000 discharging the Rule.

2. Short facts are that the plaintiffs filed Title Suit No.86 of 1991 in the 2nd Court of Senior Assistant Judge, Dhaka for declaration of title and recovery of khas possession

in the suit land as described in the schedule of the plaint stating, inter alia, that the suit land belonged to one Jagannath Mondal and the S.A. Khatian was correctly prepared and published in his name. Jagannath Mondal died leaving behind four sons and by amicable partition I his son Adhor Mondal got the suit land. Adhor Mondal died leaving behind his son Kerali Mondal who also died leaving behind his son Robi Das Mondal who sold

the suit land to one Abdur Razzaque Chowdhury who again sold it to one Mrs. Monju Rejina D-Costa who again sold it to plaintiff Nos.l and 2 who got their names mutated in the S.A. Khatian and have been paying rents and the defendants have no right, title and interest in the suit land. They raised Chapra ghar in a portion of the suit land and when asked to remove it, the defendants refused to do so. Hence is this suit.

3. The defendant Nos.1-3 contested the suit by filing a joint written statement denying the material allegations made in the plaint. Their case, in short, is that one Azizimnessa was in adverse possession of the suit land for more than 12 years and subsequently she transferred the suit land to one Safaruddin who transferred the suit land by two kabals in favour of defendant No.3 on 25.09.1973. The defendant No.3 purchased the same in benami of Md. Rezaul Karim. The defendant No. 1 filled up the suit land and constructed dwelling huts thereon and possessed the same. Thereafter, the defendant No.3 transferred

a portion of the suit land by kabala deed to one Delwar Hossain on condition that the land will be re-conveyed if the consideration money was repaid. The land was accordingly, reconveyed on repayment of consideration money in the name of defendant Nos.l and 3 who again transferred the suit land in favour of two other persons with a condition of reconveyance. The suit land was subsequently reconveyed accordingly. The suit land was

under possession of the defendants since 1973.

4. The trial court decreed the suit. On appeal being Title Appeal No.302 of 1993, the court of appeal allowed the appeal by judgment and decree dated 04.03.1999. Being aggrieved the plaintiffs moved the High Court Division in revisional jurisdiction and the Rule was discharged

5. We have heard Mr. Syed Mabbubur Rahman, the learned Advocate-on-Rccord for the petitioners and perused the judgment of the High Court Division and other connected papers.

6. The High Court Division held that the plaintiffs’ case is that they were in possession

of the suit land by purchase from one Mrs. Monju Rejina D-Costa but they were dispossessed from the suit land by the defendants. But they could not prove their

possession and alleged dispossession by the defendants as claimed by them and that the plaintiffs must prove that the suit was brought within 12 years from the alleged dispossession. Since the plaintiffs could not prove that the suit was brought within 12 years from the date of alleged dispossession, the suit was found to be helplessly barred by limitation. Accordingly, the High Court Division found that the findings of fact on question of possession and dispossession and also on question of limitation as arrived at by the court of appeal which is the final court of facts were based on proper consideration

and appreciation of the material evidence on record and there is no misreading and non-consideration of the materials on record by the court of appeal below. Accordingly, the High Court Division discharged the Rule.

7. In our view, the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the impugned judgment.

8. The leave petition is dismissed.

Source : V ADC (2008), 242

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