Appellate Division Cases
(Civil)
PARTIES
Md. Rafiq Uddin and another …………….. Petitioners.
-Vs-
Md. khorshed Ali Mollah and others……………. Respondents.
JUSTICE
Mohammad Fazlul Karim J
Md. Jovnul Abedin J
Judgment Dated: 17th May 2007
The Code in this particular, Order 7 Rule 3
For decree of declaration of their right and title in the Kha schedule property against the defendants stating that the schedule ‘Ka’ land of the plaint was owned by late Majnani Bewa. The suit lot-I property was under her Khas possession, while thelst-2 property was enjoyed by her by granting Korfa Pattan and the land was recorded in C.S. Khatian in her name accordingly. …………………………….(2)
Petitioners had purchased the property by a document of sale dated 31.05.1995. He submits that the trial Court on consideration of evidence on record passed the decree and the Court of appeal below without reverting to material findings of the trial Court allowed the appeal and set aside the trial Court’s judgment and decree which is erroneous and caused miscarriage of justice ………………………….(6)
We have perused and considered the above submissions of the parties and not at all impressed by the submissions of the learned Advocate for the petitioners ……………(7)
In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners…………………………. (8)
Accordingly the leave petition is dismissed ……………………(9)
T.H. Khan, Senior Advocate, instructed by Md. Ahsan Ullah Patwary,
Advocate-on-Record ……………………..For the Petitioners
Mohammad Mohsen Rashid, Advocate, instructed by Mr. M.G.Bhuiyan,
Advocate-on-Record …………………………….For .Respondent Nos. 1-6
Mahmuda Begum, Advocate-on-Record…………………….For Respondent Nos. 7-8
For Respondent Nos.9-13. ……………………………..None Represented
Civil Petition For Leave To Appeal No.932 of 2005
(From the judgment and order dated the 28th March, 2005 passed by the High Court
Division in Civil Revision No. 5406 of 2002).
JUDGMENT
Mohammad Fazlul Karim J: This is an application under Article 103 of the Constitution of the People’s Republic of Bangladesh directed against the judgment and order dated 28.03.2005 passed by the High Court Division in Civil Revision Case No.5406 of 2002 making the Rule absolute setting aside the judgment and decree dated 11 .06.2002 passed by the Additional District Judge, Rajshahi in Title Appeal No.46 of 2002 allowing the appeal and reversing those of dated 30.01.2002 passed by the Joint District Judge, 1st Court, Rajshahi in other Class Suit No.235 of 1983 decreeing the Suit.
2. Respondent Nos. 1-6 as plaintiffs instituted other Class suit No. 235 of 83 in the Court of subordinate Judge, Rajshahi for decree of declaration of their right and title in the Kha schedule property against the defendants stating that the schedule ‘Ka’ land of the plaint was owned by late Majnani Bewa. The suit lot-I property was under her Khas possession, while the 1 st-2 property was enjoyed by her by granting Korfa Pattan and the land was recorded in C.S. Khatian in her name accordingly. The property in lst-1 was shown as her own property, while I st-2 property was recorded showing under possession of Korfa tenants in Khatian Nos. 1538, 1550. One of the Korfa tenants Ibrahim Mollah urrendered
his Korfa right to the original landlady Manjony Bewa and the other Korfa tenants abandoned the property and it was resumed by the owner Majnony Bewa as her Khas possession and was enjoyed by her. In the year of 1936 by oral gift she transferred entire property to one Monir son of her sister, who was also a son of her husband’s brother Syed Ali Mollah. At the time of her death Syed Ali Mollah was a minor and Ibrahim Mollah used to look after the property of Monor Syed Ali Mollah. Manjony Bewa and Sajen Bewa were full sisters and the father of Monir named Syed Ah Mollah was husband’s
brother of Manjony Bewa Manjany died ‘issueless’ and on the death of Manjony
Bewa and Ibrahim Mollah, Syed Ali Mollah became the owner in possession of the Kha schedule property under Khatian No. 1539 by way of gift and also by way of inheritance from his father and mother. After the death of Ibrahim Mollah, Syed Ali Mollah married a nice of Ibrahim Mondal of the locality. Ibrahim Mondal used to look after the property of Syed Ali Mollah and himself took the Job for recording the property in S.A. record in
the name of Syed Ah Mollah and he reported that record was made in the name of Syed Ali Mollah. Syed All Mollah remained content with said report of recording. It is also stated that Syed Ali Mollah was a half mad, short in sight and hearing. Syed Ah Mollah died leaving plaintiffs Nos.1-4 as sons, plaintiff No.5 widow and two daughters, plaintiffs Nos.6 and 7 who all became owners in possession of the property and are paying rents
and in the meantime, the R.S. survey commenced. The property in schedule ‘Kha’ out of Ka schedule property was recorded in their names. The plaintiffs were possessing
‘Kha’ schedule property on payment of rents peacefully without any obstruction. The defendants suddenly claimed right and title in ‘Kha’ schedule property. Then, the plaintiffs on obtaining a certified copy of the R.S. khatian on 08.05.1983 from collectorate, came to know about the erroneous recording The recording of ‘Kha’ schedule property out of schedule ‘Ka’ property in the name of defendants was illegal. Ibrahim Mondal got it recorded in S.A. record in the name of Ibrahim Mondal instead of Ibrahim
Mollah and in the names of his own daughters and wife. The defendants has no right, title and interest in the suit property. The claim of defendants in the suit property creating a cloud in the right and title of the plaintiffs and the suit was filed for removal of said cloud.
3. The defendants contested the suit by filing written statement denying the plaint Case stating that the suit was not maintainable in present form and was barred under the law of limitation. There was defect of parties. The Suit was not properly valued. The defendants stated that the suit land under C.S. khatians Nos. 1537, 1538 and 1550 were originally owned by Manjony Bewa, who failed to pay rents, and consequently the property was sold in auction, and one Ibrahim Mondal purchased it in auction sale and on getting
possession of the property owned the property peacefully; Ibrahim Mondal paid rents for 10.34 acres of land at fixed Jama at Tk.33.00 to the Raja Birendra Nath Roy Bhadur Estate, Natore in his name and paid rents. He was also locally known as chute Ibrahim Mondal. He subsequently transferred property measuring 10.34, by registered deed of Heba dated 12.10.1946 to his wife Sabiran Bibi alias Sabran Bibi, and daughter Rokeya Khatun. The wife and daughters owned and possessed the entire property. Rokeya by a deed of Heba dated 11.1.1958 transferred 3.30 acres of land to her husband Abdul Khaleque Khan, who in his turn enjoyed the property on payment of rents in his name. It was mentioned that Sabiran Bibi and Rokeya had inducted a Korfa tenant in 2.86 acres of and out of 10.34 acres of land and they had been possessing 7.48 acres of land as Rokeya made gift for 3.30 acres there remained 4.18 acres of land to them. Thus Abdul Khaleque, Sabtran and Rokeya possessed the land on payment of rents. By a sale deed dated 26.”04.I967 Abdul Khaleque transferred his 3.30 decimals of land to his wife Rokeya. in lieu of her dower. Thus Sabiran and Rokeya begum possessed 7.48 acres of land.
4. Mr. T.H. Khan, Senior Advocate appearing for the petitioners submits that the auction purchase of the suit land by the ex-Zaminder and getting delivery the possession of the same and the subsequent Pattan given to the Ibrahim Mondal, the predecessor of the defendants having been proved by evidence oral and documentary nothing remained with Manjony Bibi, either to make oral gift to Sayed ali Mollah or getting the suit lands by inheritance by Sayed Ali Mollah from Manjony Bewa and also getting the suit land by-
inheritance by this plaintiffs, consequently, said Sayed Ali Mollah and in his absence the plaintiffs did not bother to got the name of Syed Ali Mollah recorded, in the S.A. Khatian and subsequently in the R.S. Khatian, finally published and having a presumptive value and the Appellate Court rightly allowed the appeal and dismissed the plaintiffs suit on proper analysis of a evidence and materials on record but the High Court Division totally avoided to consider the said vital points involved in the matter and most illegally and arbitrarily passed the impugned judgment not sustainable in law and is liable to be set aside. That as there is no scrap of paper of the plaintiffs to show documentary evidence of possession and P.W.s are all interested could not prove- plaintiffs alleged possession of the suit lands in any manner whatsoever with wherein unspecified and vague statement of D.W. 3, which did not help in any manner, relating to the plaintiffs alleged possession far less specific possession and hence the appellate Court was quite justified in holding that
the plaintiffs were not entitled to a decree for want of proper identification of the suit
land i.e. ‘Kha’ Schedule lands consisting in 16 different C.S. Plots at different places
corresponding of 1 4 R.S. Plots but the High Court Division without recording any independent finding and on mere surmises and conjectures most illegally concurred
with the finding of the trial relating to the plaintiffs alleged possession and passed the impugned judgment and thus committed a grave error of law. That the plaintiffs main Case of verbal gift not having been proved as observed by the High Court Division but on the alleged case of getting the property by inheritance as held by the High Court Division is not in the plaint and was not found by the Trial Court and the said Case not having been proved by any sort of evidence, the High Court was totally wrong in holding that
the plaintiffs got the property in suit by inheritance and thus the High Court Division committed error of law in making the Rule absolute; that the High Court Division committed error in law in passing the impugned judgment without recording any independent findings regarding the judgment of the trial Court; that the materials on record show that the predecessor of the defendants and after his death the defendants as well had been and have been in actual physical possession of the suit land asserting hostile title, enjoyed the usufructs of the suit lands and paid rent of the suit land from 1339-1400 B.S. and neither the plaintiffs predecessor nor the plaintiffs took any step for establishment of their title and recovery of possession of the suit lands within the statutory period of limitation and hence the plaintiffs suit is barred by limitation and they
are not entitled to a decree for simple declaration of their title of the suit land and
therefore, the suit of the plaintiff is also barred under Section 42 of the Specific Relief Act also but the High Court Division totally ignored to record any findings on the said vital points of law and committed errors of law and passed the impugned judgment causing serious miscarriage of justices; that identificafions and the manner of possession of 16 C.S. Plots not having been given specifically in the plaint as held by the Appellate Court, the plaintiffs are not entitled to a decree for simple declaration on vague description of the suit land but the High Court Division was wrong in holding that the
suit properties has been identified describing the record of settlement of survey and
the property was sufficiently identified as per order 7 Rule 3 of the Code of Civil
Procedure.
5. Lastly Mr. Khan submits that the High Court Division misconstrued and misinterpreted
the provisions of Order 7 Rule 3 of the Code in this particular case and committed error of law in the decision and most illegally and arbitrarily passed the impugned judgment.
6. Mr. Mohammad Mohsen Rashid, learned Advocate, appearing for the respondent Nos.1-6 submits that the petitioners had purchased the property by a document of sale dated 31.05.1995. He submits that the trial Court on consideration of evidence on record passed the decree and the Court of appeal below without reverting to material findings of
the trial Court allowed the appeal and set aside the trial Court’s judgment and decree which is erroneous and caused miscarriage of justice.
7. We have perused and considered the above submissions of the parties and not at all impressed by the submissions of the learned Advocate for the petitioners.
8. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners.
9. Accordingly the leave petition is dismissed.
Source : V ADC (2008), 115