Md. Fazlur Rahman and others Vs. Haji Md. Manir Khan and others

Appellate Division Cases

(Civil)

PARTIES

Md. Fazlur Rahman and others. ……………… Defendant- Petitioners.

-Vs-

Haji Md. Manir Khan and others………………. Plaintiff- Respondents.

JUSTICES

Mohammad Fazlul Karim J

M.M. Ruhul Amin J

Judgment Dated: 14th May 2007

For recovery of khas possession in respect of lands (2)

The fact to the alleged dispossession the plaintiff has sought to prove that the plaintiff was dispossessed on 06.09.1972 from the Schedule-3 land of the suit. Fact remains that though the defendant claims the suit land but they have not challenged the decree in Title Suit No. 202 of 1969 and the proceeding in Execution No.5 of 1970. On the contrary the defendant No.l has failed to prove the alleged patta, kabala deed dated 03.06.1972 and unregistered bainanama dated 10.04.1969 being the basis of his alleged possession and title in the suit land and thus failed to prove the same………………. (9)

M.A. Gaffar, Advocate, (appeared with the leave of the Court) instructed by A.KM.

Shahidul Huq, Advocate-on-Record……………….For the Petitioners.

For Respondents …………………None represented.

Civil Petition for Leave to Appeal No. 797 of 2005

(From the Judgment and order dated the 16th April of 2005 passed by the High Court

Division in Civil Revision No. 3780 of 2000.)

JUDGMENT

Mohammad Fazlul Karim J : This petition for Leave to Appeal at the instance of the defendant-petitioner is directed against the judgment and order dated 16.04.2005 passed by the High Court Division in Civil Revision No. 3780 of 2000 discharging the Rule affirming the judgment and decree dated 13.08.1998 passed by the Additional Judge, Anti-Smuggling Tribunal, Sylhet in Title Appeal No. 103 of 1997 dismissing the appeal affirming

those dated 19.02.1997 passed by the Second Additional Court of Subordinate Judge, Sylhet in Title Suit No. 8 of 1978.

2. The predecessor of the respondents as plaintiff on 12.09.1973 filed the Title Suit

No. 223 of 1973 (renumbered as Title Suit No. 8 of 1978) before the learned Subordinate Judge, 2nd Court, Sylhet for declaration title in the suit land in schedule-I and confirmation of possession in respect of land described in schedule II and for recovery of khas possession in respect of lands described in schedule III.

3. The case of the plaintiff-respondents, in brief, is that the suit land originally belonged to Ramesh Chandra Chowdhury, Ratish Chandra Chowdhury and Suresh Chandra Chowdhury who died leaving behind only son Sankar Prasad Chowdhury, the pro-forma defendants Nos. 13 and 14, entered into an agreement for sale with the plaintiff for the suit land with a consideration of Tk. 15,000.00 and executed a Bainapatra on 14.04.1969 in favour of the plaintiff on receipt of Tk. 13,000.00 and delivered possession thereof

and they agreed to execute the requisite kabala within three months on receipt of balance consideration, but on being refused the original plaintiff filed Title Suit No. 202 of 1969 for specific performance of contract against the pro-forma defendant Nos. 13 and 14 and got decree on 26.01.1970 and also got the kabala on 11.02.1972 through Court vide Title

Execution Case No. 5 of 1970. That defendant Nos. 1-3, 9-12 and predecessor of defendant Nos. 4-8 created some false, fraud, fraudulent, collusive and anti-dated documents by false personification. The aforesaid defendants wrongfully and forcefully dispossessed the plaintiffs on 06.09.1972 from the suit 3rd schedule land and also threatened to dispossess from the 2nd schedule land and hence the suit.

4. Defendant No.l contested the suit by filing written statement and contended, inter alia, that the suit was barred by limitation and bad for defect of parties and also stated that the pro-forma defendant Nos. 13 and 14 have not executed any Bainapatra or delivered possession of the suit land. That Suresh had no son in the name of Sankar but died leaving behind two sons namely Subrata and Shuhendu; that Ratish Chowdhury pro-forma defendant No. 13 sold dag No. 2569 of the 2nd schedule comprising and area of 2.16 acres to this defendant by registered kabala dated 03.06.1972 and delivered possession thereof and since then this defendant was possessing the same.

5. The further case of the defendant-petitioner is that Subrata and Shuhendu. sons

of Suresh Chowdhury, contracted to sell dag No. 2283 of the 2nd schedule land with defendant Nos. 1 and 2 on 10.04.1964 and delivered possession thereof. That the defendant took settlement in 1358 B.S of the suit 3rd schedule land from the Zaminder Romesh Chandra Chowdhury and Suresh Chandra Chowdhury and since then was possessing the same living therein with their families. That as the record of right wrongly prepared in the name of Ex-landlord, this defendant filed Title Suit No. 150 of 1969

in the first Court of Munsif, Sylhet for correction of the record of right; that the

judgment and decree passed in Title Suit No. 202 of 1969 was not binding upon this

defendant as he was not a party to the suit and that the plaintiff had no right, title or

interest over the suit land and hence prayed for dismissal of the suit.

6. Mr. M.A. Gaffar, learned Advocate, for the petitioner submits that the High Court

Division while passing the impugned judgment and order did not appreciate the submission made by the learned Advocate of the petitioner that both the Courts

below have failed to take into account that the plaintiffs claim m the suit land is

based upon a Bainapatra on the basis of which he obtained an exparte decree in Title Suit No. 202 of 1969 wherein the predecessor of the petitioners was not a party and only on the strength of the exparte decree the plaintiffs were not entitled to any decree in the subsequent Title Suit No. 8 of 1978 without producing the Bainaptra and without proving the genuineness of the said Bainapatra in the subsequent suit within the meaning of Section 101 of the Evidence Act.

7. The learned Advocate for the petitioner submits that the High Court Division did not consider the submission made by the learned Advocate of the petitioners that the record shows that the trial Court while recording depositions of the plaintiff witnesses did not mark and endorse only documents as required by law which ought to have been marked and exhibited at the time of recording depositions so that the defence may have an opportunity to cross-examine the witnesses upon these documents.

8. Mr. Gaffar furthers submits that all the Courts below including the High Court Division have failed to consider the submission of the learned Advocate of the petitioners that the exparte judgment and decree passed in T.S. No. 202 of 1969 on the basis of which subsequent decree in Title Suit No. 8 of 1978 was passed in not binding upon the defendant No. 1 as he was not a party to that suit; that all the Courts below misconstrued the documentary evidences in order to disbelieve the case of the defendant No. 1.

9. The plaintiff-respondent examined 4 witnesses in support of his case and filed documents which were marked Exhibit-1 to Exhibit-7 and the same were admitted

without objection. The defendant-appellants as well examined 4 witnesses and produced Exhibit-A to Exhibit-C. The defendant though objected before the trial Court to the effect that the Suresh Chandra Chowdhury had no son named Sanker Prashad Chowdhury but has obtained exparte decree in the Title Suit No. 202 of 1969 that they had no absolute right, interest and possession in the suit land and the trial Court has held that there is evidence that Suresh Chandra Chowdhury had a son named Sanker Prashad Chowdhury and has been possessing the suit land. The trial Court also decreed the suit holding that on

06.09.1972 the defendants have dispossessed the plaintiff from the Schedule-3 land. The fact of Sanker Prashad Chwodhury being a son of Suresh Chandra Chowdhury has been proved by PW-1 {Exhibit-l,2,3,3(a)J. The fact to the alleged dispossession the plaintiff has sought to prove that the plaintiff was dispossessed on 06.09.1972 from the

Schedule-3 land of the suit. Fact remains that though the defendant claims the suit

land but they have not challenged the decree in Title Suit No. 202 of 1969 and the proceeding in Execution No.5 of 1970. On the contrary the defendant No.l has failed to prove the alleged patta, kabala deed dated 03.06.1972 and unregistered bainanama dated 10.04.1969 being the basis of his alleged possession and title in the suit land and thus failed to prove the same.

10. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners.

11. Accordingly, the petition for leave to appeal is dismissed.

Source : V ADC (2008), 231

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