Appellate Division Cases
(Civil)
PARTIES
Md. Sheikh Farid and others …………………………………..Appellants
-Vs-
Abdul Wadud Sikder and others …………………………….. Respondents
JUDGES
Md. Ruhul Amin, J
Md.TafazzuI Islam, J
Date of Judgment
16th March, 2006
The question that called for determination in the instant case whether the plaintiff was able to make out a case of acquisition of title by adverse possession in respect of the land wherein he entered on the basis of the document claimed to be genuine (11 )
Required to establish from what particular point of time he started to possess the land in assertion of his title upon denying the title of the real owner i.e. Karuna Moyee Dasi. The evidence from plaintiff’s side is totally lacking for establishing the fact that from a particular point of time he started to possess the land asserting his title upon denying the title of the real owner to his knowledge as well as to the knowledge of the others and since that date he was possessing the land for more than 12 years (11 )
That plaintiff did not acquire any title in land in suit by adverse possession since there is lack of evidence to show that he possessed the land denying title of Karuna Civil appeal No. 451 of 2001 (From the judgment and Order dated July 23,1996 passed by the High Court Division in Civil Revision No.1835 of 1994) I Moyee Dasi or her sons to their knowledge (12)
ADVOCATES
! S.M. Munir, Advocate , instructed by Md. Nawab AH, Advocate – on -Record’. For the Appellants S\ed Badnd Alam, Advocate,( with the leave of the Court) instructed by Md. Aftab Hossain, Advocate -on-Record For Respondent Nos 1,2,11,17,24 and 39 Not represented Respondent Nos. 3-10, 12-16, 18-23, 25-38 & 40-44
JUDGMENT
1. Md. Ruhul Amin, J. :- This is plaintiffs’ appeal by leave against the judgment dated July 23,1996 of the High Court division in Civil Revision No. 1835 of 1994 making absolute the Rule obtained against the judgment and decree dated February 24, 1994 of the Court of District Judge, Gopalganj in Title appeal No. 24 of 1992 reversing the judgment and decree dated March 7.1992 of the Court of Assistant Judge, Sadar, Gopalganj, in Title Suit No. 218 of 1974 dismissing the same. The suit was filed seeking declaration of title by adverse possession and confirmation of possession in respect of 3.25 acres of land.
2. The suit was filed by Abdur Rashid Sheikh, predecessor of the appellants stating, inter alia, that land in suit belonged to Karuna Moyee Dasi and she agreed to sell the land in suit for a consideration of Tk, 1,800/- and she on receiving Tk. 1,200/- executed a bainapatra on January 1, 1952 and delivered possession, that there was stipulation in the agreement that the kabala would be executed and registered after six months from date of agreement after payment of balance of the consideration money Tk.600/-. It was the case of the plaintiff that after executing bainapatra and receiving the part of the consideration money Karuna Moyee Dasi left the then East Pakistan for India with the members of her
family and started leaving there, that Karuna Moyee Dasi executed a Power of Attorney in favour of Bijoy Krishna Majumdar appointing him as her attorney in respect of the land of bainapatra and other land, that inspite of approaching Karuna Moyee Dasi to execute and register the kabala upon receiving balance of consideration money she did not execute and register the kabala, that balance of the consideration money was paid to the attorney of Karuna Moyee Dasi and he assured to execute and register the kabala within the shortest possible time, that prior to the execution and registration of the kabala by Karuna Moyee dasi the defendant No.l in collusion with some other persons upon resorting to forgery got a kabala registered by false personation, that a case of forgery was filed against the defendant No.l and others and they were found guilty and were convicted but on appeal they were acquitted on technical ground that trial was held without obtaining sanction since one of the accused was a public servant.
3. It was also the case of the plaintiff that Karuna Moyee Dasi came in the then East Pakistan in 1963 and she affirmed an affidavit on August 24.1963 before the Magistrate, 1st Class, Faridpur denying execution of any kabala in favour of defendant No. 1 and others and admitting execution of agreement for sale in favour of the plaintiff. The Plaintiff upon making the above averments filed the suit seeking the relief as stated hereinbefore. As regard cause of action for filing the suit it was stated that plaintiff was constrained to file the suit since the defendants threatened him to dispossess from the land in suit. 4. The suit was contested by defendant Nos.l and 36 by filing separate sets of written statement. It may be mentioned defendant No.36 ultimately did not contest the suit. The defendant No.l in his written statement denied the material averments made in the plaint and contended, inter alia, that he along with 10 others purchased the land in suit from Karuna Moyee Dasi by the Kabala Dated April 19,1962 and since purchase he and the other purchasers are possessing the land in suit, that the bainapatra of the plaintiff is forged and fabricated and that the plaintiff has no right,title and interest in the land in suit on the basis of the forged bainapatra.
5. The trial Court on consideration of the evidence of the parties dismissed the suit on the
finding that plaintiffs claim of offering the balance of the consideration money to Karuna
Moyee Dasi and refusal by her to execute and register the kabala is baseless, that payment of balance of the consideration money to Karuna Moyee Dasi’s attorney in 1962 and his refusal to execute and register the kabala is something absurd and unbelievable and that the said claim is baseless and also has not been established by producing evidence, that plaintiffs claim that writer of the agreement had died was not established by producing evidence, that there is no satisfactory explanation why the suit for specific performance was not filed in between the years 1952 to 1976. that it is not clear whether the plaintiff possessed the land in suit and after his death his heirs are possessing the land in suit, that the witnesses examined by the plaintiff are not disinterested witnesses and that evidence of the said witnesses, particularly of the evidence of P.W.2. is contradictory, that P.W.2 • though claimed himself to be a witness of the bainapatra but his signature in the bainapatra and the deposition – sheet discrepant, that from the analysis
of the evidence of P.w.5 it is seen that his evidence is contradictory and he has no regard for truth, that P.W.5 has stated that bainapatra was written on a plain paper but in fact the same was written on cartridge paper bearing the water mark State of Calcutta and the national symbol of India (fif’3 Vf¥l a/OT/3> &$) and as such it can be safely concluded that the bainaparta«was brought into existence anytime after 1952, that on consideration of the evidence, Both oral and documentary, there is no occasion for arriving at a conclusion that plaintiff got the possession of the land in suit on the basis of bainapatra and he is possessing the same, that the defendants though claimedthat they have purchased the land of Karuna Moyee Dasi by 4 kablas but the same were not filed in the Court and that they had also not adduced any evidence in support of their claim of purchasing the land from Karuna Moyee Dasi and of possessing the land on the basis of alleged purchase, that plaintiff failed to prove his title and possession in the land in suit, that the plaintiff as well as defendants have no right, title and interest as well as possession and that the papers relied upon by the plaintiff and defendants in support of their respective claim can not be consider legal and valid document, that the cause of action as stated in the plaint is not correct, rather cause of action arose in 1962 while there was dispute of extreme nature relating to the title and possession of the land in suit, that the plaintiff has filed the suit on imaginary date of cause of action, that the plaintiffs suit is barred by limitation, that plaintiff failed to prove his case as well as the genuineness of the bainapatra.
6. As against the judgment and decree of the trial Court the plaintiff took appeal to the Court of District Judge. The appellate Court in arriving at the decision as to genuineness of the agreement said to have been entered into between Abdur Rashid Sheikh and Karuna Moyee Dasi.«he owner of the property in suit, placed reliance primarily on an affidavit produced by the plaintiff, said to have been executed by Karuna Moyee Dasi before the Magistrate.. 1st Class, Faridpur on August 24, 1963 wherein Karuna Moyee Dasi stated that she entered into a contract to sell the land in suit to Abdur Rashid and that she did not execute and register any kabala in favour of the defendants on April, 1962 and also placed reliance upon the Power of Attorney said to have been executed by Karuna Moyee Dasi appointing certain Bijoy Krishna Majumdar as her attorney in respect of the property of Karuna Moyee Dasi including the land in suit upon over looking the fact that the said affidavit and the Power of Attorney were not proved by calling the competent witness and because of that the said documents were left out of consideration by the trial Court. The appellate Court while considering the genuineness of the agreement for sale (Ext.l) between Abdur Rashid and Karuna Moyee Dasi considered the matter of non-appearance or in other words non- contesting of the suit by the defendant Nos.37 and 38, sons of Karuna Moyee Dasi who said to have died. The fact of death of Karuna Moyee Dasi was not established by any evidence. It may be mentioned it was the definite case of the plaintiff that Karuna Moyee Dasi after execution
of the alleged deed of agreement for sale of the land in suit allegedly on January 1.1952 left for India with the members of her family including the sons and were residing there. In that state of the matter the trial Court was of the view that impleading of the defendant
Nos.37 and 38 showing their address in Bangladesh was not genuine since plaintiff himself averred that Karuna Moyee Dasi with her children after execution of agreement for sale left for India and was residing in India. The appellate Court also held that the Respondents failed to establish their case of purchasing the land in suit. The appellate Court also held that since the date of execution of the bainapatra on January 1. 1952 Abdur Rashid and after him his heirs, the substituted plaintiffs are possessing the land upon assertion of their title and denying the title of Karuna Moyee Dasi as well as her heirs and that possession of the plaintiff being for more than 20 years in assertion of his title upon denying title of the owner Karuna Moyee Dasi. whatever interest Karuna Moyee Dasi had in the land in suit, the same extinguished and thus the plaintiff acquired titie by adverse possession. The appellate Court whil’e accepting the case of the plaintiff that Karuna Moyee Dasi executed the bainapatra relied upon the evidence of RAV.2 upon over looking the fact that the said witness was not the attesting witness to the bainapatra and becuse of that trial Court discarded his evidence relating to execution of bainapatra by Karuna Moyee Dasi an payment of part of the consideration money by Abdur Rashid to Karuna Moyee Dasi. The appellate Court while considering the genuineness of the agreement for sale also placed reliance on the evidence of P.W.5 who is an attesting witness to the bainapatra. It may be mentioned P.W.5 is the close relation of the recipient of the bainapatra and his evidence being not corroborated by any independent witness trial Court discarded the evidence of P.W.5. The appellate Court while arriing at the finding that plaintiff acquired title by adverse possession, observed that the appellants are in possession of the land in suit since January 1. 1952″as part performance of the contract” and thereupon observed that the plaintiffs were claming the land in suit in assertion of their title and denying the title of Karuna Moyee Dasi the real owner and the defendants failed to prove their possession in the land in suit. The appellate Court while reversing the finding of the trial Court as to question of limitation has observed that the suit is for declaration of title and confirmation of possession and the plaintiff has title and possession in the land in suit and the suit has been filed well within time from the date on
which plaintiffs possession was threatened by the defendants and thereupon held that the
trial Court was wrong in holding that the be mentioned that the question of limitation was addressed by the trial Court in the context of not filing in due course any suit seeking relief on the basis of the agreement for sale.
7. The defendants i. e. Respondents herein as against the judgment of the appellate Court
moved the High Court Division in revisional jurisdiction and obtained Rule. The High Court Division made the Rule absolute upon observing that the trial Court noticed the internal incongruity in the cartridge paper on which agreement for sale was drawn up in that the water mark in the cartridge paper was the national symbol of the Government of India and consequently the cartridge paper was not in use in the then East Pakistan when at best there could be in use cartridge paper of British India and thereupon the High Court Division arrived at the finding that the agreement for sale was not a genuine document. It may be mentioned the appellate court did not at all consider this aspect of the matter noticing which the trial Court held that agreement for sale was not a genuine document. The appellate Court has also not reversed the finding of the trial Court in that regard. The High Court Division considered the case of the plaintiff that he entered into possession of the land in suit on the basis of the bainapatra and it is the case of the plaintiff that the bainapatra is genuine one. In the background thereof the High Court Division held since the plaintiff had at no point of time asserted that his entry into the land was on the basis of void document and that there being no case of the plaintiff that he possessed the land denying the title of the real owner and as such the claim of the plaintiff that he acquired title in the land in suit by adverse possession is not well founded and that decisions on which the plaintiff placed reliance in support of his case of adverse possession on the basis of void document has no bearing on the facts and circumstances of the instant case and because ol thg fact slated herein above. The High Court Division from te pleading of the plaintiff noticed that plaintiff paid the balance of the consideration money to the attorney of Karuna Moyee Dasi but there is no evidence on which date in fact the plaintiff paid the balance of the consideration money to Karuna Moyee Dasi’s attorney whose appointment said to have been made by Karuna Moyee Dasi on June 9,1962. The High Court Division also noticed the fact pleaded by the plaintiff that on receiving the balance of the consideration money the attorney of Karuna Moyee Dasi assured the plaintiff that he would execute the kabala in the light of the agreement for sale. There is no case of the plaintiff that at any point of time attorney refused to execute the kabala. In the background of the aforesaid state of the matter High Court Division held that as the plaintiff was awaiting for the execution of the plaintiff to possess the land in suit upon denying the title of the real owner and thereupon held that in the absence of establishing the fact of possessing the land on assertion of title by the plaintiff upon denying the title of the real owner the plaintiffs case of acquiring title by adverse possession is not legally well founded. It may be mentioned there is stipulation in the agreement for sale that in case balance of the consideration money is not paid within 6 months from the date of execution of the bainapatra (the bainapatra was executed on January 1, 1952) the plaintiff would pay share of the crops of the land in suit to Karuna Moyee Dasi. In that background the High Court Division observed that there was no occasion for the plaintiff to possess the land claiming his title in the land in suit upon denying title of Karuna Moyee Dasi and as such appellate Court was in serious error in holding that the plaintiff acquired title in the land in suit by adverse possession.
8. The learned Advocate appearing for the appellant has submitted that plaintiffs predecessor was in possession of the land in suit since January 1952 and after that plaintiffs are in possession of the land in suit and that the last court of fact having had found the agreement for sale entered into by Karuna Moyee Dasi, the real owner, with Abdur Rashid, the predecessor of the appellants genuine and thereupon the last Court of fact having had decreed the suit declaring the title of the plaintiffs acquired by adverse possession the High Court Division in its revisional jurisdiction was in error in disturbing the finding of fact arrived at by the last Court of fact on due consideratioof the evidence and thereupon setting aside the judgment of the lower appellate Court. The learned Advocate for the appellant also submitted that the trial court as well as the High Court Division having had held that the agreement for sale was not genuine and consequent thereupon it being the position that the document on the basis of which plaintiffs predecessor entered into possession being void one and on the basis thereof having had possessed the land in suit for more than 20 years denying the title of the real owner and upon assertion of his title by the plaintiff and thereafter by the plaintiffs heirs and thus they have acquired title in the land in suit by adverse possession. In support of the said contention the learned Advocate has referred to the case of Mir Laik Ali Vs. Standard Vacuum Oil Company (ESSO) and Abdur Razzak reported in 16 DLR (SC). 287 wherein it has been observed “When there is an invalid transfer in favour of a person and he holds possession of the property transferred as transferee, his possession is in his own right and adverse to the transferor. If he continues in possession of immovable property for more than twelve years he will acquire an indefeasiable title. Of course it is open to a transferee if he finds the transaction in his favour to be invalid not to treat the property as his own, but that will be where he accepts the invalidity of the transfer and henceforth proposes to hold the property on behalf of the transferor. If it be his claim that e holds it by virtue of a transfer which he regards as valid he is obviously holding in his own right and not on behalf of the transferor or in trust for him. A large number of cases could be cited wherein it was held that an unregistered deed though it could not effect a valid transfer could be looked as to ascertain the nature of posession of the transferee. In all these cases
it is the transferee who relied on this proposition and who put forward the deed as evidence of the fact that his possession was in assertion of the title which the unregistered deed purported to convey and it has always been held, in the absence of some rebutting circumstance, that a person in possession under an invalid deed which he claimed as valid held in his own right and his possession was adverse to the true owner”.
9. The learned Advocate appearing for the Respondents supported the judgment of the High Court Division submitting that from plaintiffs side there is no evidence to establish that he ever claimed title to the suit land by adverse possession and also there is no evidence to show that at what point of time plaintiffs possession became hostile to the real owner Karuna Moyee Dasi. The learned Advocate also submitted that it is the case of
the plaintiff that he paid balance of the consideration money to the Attorney of Karuna Moyee Dasi who assured him to execute the kabala but there is no pleading that he any point of time had refused to execute the kabala and as such there is no case of claim of title in the land by the plaintiff and thereafter by his heirs, the present appellants, by adverse possession.
10. It is the case of the plaintiff that the real owner Karuna Moyee Dasi agreed to sell the land in.suit to him and that upon receiving part of the consideration money executing a bainapatra and put him into possession of the land. It is also the case of the plaintiff that he paid the balance of the consideration money to the Attorney of Karuna Moyee Dasi at any point of time refused to execute the kabala, rather it is the case of the plaintiff that after payment of the balance of the consideration money, he was assured by the Attorney of Karuna Moyee Dasi that the kabala would be executed very soon. This aspect of the matter clearly shows that plaintiff was in expectance of having the kabala to be executed by the Attorney of Karuna Moyee Dasi and this being the position there was no question of possessing the land upon denying the title of Karuna Moyee Dasi. No positive evidence has been lead from the side of the plaintiff to establish from what point of time the plaintiff started to possess the land in suit asserting his title upon denying the title of the real owner Kruna Moyee Dasi. There is another aspect of the matter that it is the consistent case of the plaintiff that the agreement executed by Karuna moyee Dasi was genuine. The learned Advocate for the apellants also made submission that appellate Court on consideration of the evidence having had found the agreement for sale genuine the High Court Division was in serious error in setting aside the said finding of the appellate Court and thereupon setting aside the judgment and decree of the appellate Court. The above being the case of the plaintiff or in other words plaintiffs entry on the land in suit being on the basis of a document which he is consistently claiming genuine, then claim of acquisition of title by adverse possession on the basis thereof does not fit in with the ratio decided of the case reported in 16 DLR(SC) 287, referred herein before and as such decision made in the said case has no manner of application in the instant case. The decision reported in 16 DLR(SC)287 shows that the ratio of the said case is applicable in the background of the fact where there is a real transferor. There is nothing in the said decision that in the case of fictitious transferor, claim of title by the transferee of said kind of document would be adverse in respect of the property. In the instant case document of plaintiff has been found not genuine and accepting the said finding the appellants are claiming title by adverse possession. The claim so made is not legally well founded.
11. The question that called for determination in the instant case whether the plaintiff was
able to make out a case of acquisition of title by adverse possession in respect of the land
wherein he entered on the basis of the document claimed to be genuine. The plaintiff was
required to establish from what particular point of time he started to possess the land in
assertion of his title upon denying the title of the real owner i.e. Karuna Moyee Dasi. The
evidence from plaintiffs side is totally lacking for establishing the fact that from a particular point of time he started to possess the land asserting his title upon denying the title of the real owner to his knowledge as well as to the knowledge of the others and since that date he was possessing the land for moe than 12 years. In our view there is no evidence that at any particular point of time the plaintiff claimed title in the land in suit on the basis of adverse possession or in other words claimed his title in the land upon denying the title of the real owner.
12. In that state of the matter we are of the view that High Court Division was quite correct in arriving at the finding that plaintiff did not acquire any title in land in suit by adverse possession since there is lack of evidence to show that he possessed the land denying title of Karuna Moyee Dasi or her sons to their knowledge. 13. Accordingly the appeal is dismissed with costs.
Source: III ADC 2006(710)