Appellate Division Cases
(Civil)
Md. Siraj Mondal @ Md. Sirajuddin Mondal and another……………Appellants
Vs
Mosammat Miration Nessa and other………………………Respondents
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment
23rd March 2006
Seeking declaration of title and khas possession upon evicting the defendants from the land in suit.
High Court Division though have not considered the issue involved in the suit i.e. whether there was surrender by Jairuddin his korfa tenancy to Kuran Mondal under whom he was a korfa tenant elaborately but for that it can not be said that High Court Division while setting aside the judgment of the appellate Court did not consider the material evidence. We find from the judgment under appeal the said Division in fact considered the issue involved in the suit i.e. the question of surrender by Jitu Mondal in favour of Kuran Mondal and in the background of the materials on record held that appellate Court did not advert to the findings and decisions of the trial Court and thereupon did not reverse the finding of the trial Court based on evidence. In our view High Court Division was not in error in holding that from the defendants’ side evidence was lacking to establish the case of surrender by Jairuddin in favour of Kuran Mondal….(7)
ADVOCATES
Md. FazJul karim, Senior Advocate, instructed by Md. Nawab AH Advocate-onrecord For Respondent No. 1 Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocateon-record For Respondent No. I .Not represented Respondent Nos. 2-8
JUDGMENT
1. Md. Ruhul Amin J :- The defendant Nos. 1 and 2 have filed, by leave, the instant appeal against the judgment dated March 29, 1998 by the High Court Division in in Civil Revision No. 2248 of 1991 (Dhaka)Civil Revision No. 271 of 1984 (Rangpur) making absolute the Rule obtained against the judgment and decree dated July” 19, 1984 “of the Court of Subordinate Judge (now Joint District Judge), Nawabganj in Title Appeal No. 176 of 1982 reversing the judgment and decree dated April 30, 1982 of the Court of Munsif (now Assistant Judge), Nawabganj in Other Class Suit No. 28 of 1977 decreeing the same.
2. The suit was filed seeking declaration of title and khas possession upon evicting the defendants from the land in suit.
3. The case of the plaintiff, in short, is that the land in suit, which is homestead, belonged to Jairuddin and in his name C.S. record was prepared, that said Jairuddin died leaving daughter Araben Nessa and nephew (brother’s son) Giasuddin and they inherited the land left by Jairuddin including the suit land, that Jairuddin used to possess the land through pargadar, that S. A. record was prepared in the name of Mondal vs Miration Nessa (Md. Ruhul Amin .1) 349 Jairuddin that Araben Nessa and Lokman son of Giasauddin transferred the land in suit to the plaintiff by the kabala dated January 19, 1970 and since then plaintiff is possessing the land on payment of rent to the Government that there is passage over the suit plot No. 837 and the said path has divided the land of plot No. 837 in two parts, in one part .03 decimal of land, that recent revisional record of right has been prepared in respect of 13 decimals of land in the name of the plaintiff, that the defendants upon claiming the land in suit on the basis of the kabala dated November 25,1976 obtained from successive heirs of Jitu Mondal dispossessed the plaintiff from the ‘kha’ schedule land.
4. The case was contested by the defendant Nos. 1 and 2 by filing written statement denying the material averments made in the plaint and stating inter alia, that Jairuddin was korfa tenant under Kuran Mondal in respect of the land of C. S khatian no. 409 of Mouza Rajarampur, that Jairuddin surrendered his korfa tenancy by a ‘Istafanama’ in 1335 B. S in favour of Kuran Mondal, that Kuran Mondal died leaving son Tarash Haider (Mondol) and made settlement of 10 decimals of land out of 15 decimals of land of plot No. 837 to Jitu Mondal by the ‘Hukumnama’ dated 9l;n Poush, 1345 B. S and that on obtaining the settlement Jitu Mondal enjoyed the land so taken settlement by groring crops and that also paid rent, that Jitu Mondal died leaving 2 sons, 2 daughters, and by amicable partition amongst the said persons Jitu MondaFs son Gudar AH relinquished his right in respect of the land of plot No. 837, that Jitu Mondal’s one son and one daughter sold their share to their brother Alfazuddin and thus he became owner of 10 decimals of
land, that 5 decimals of land was settled by Tares Mondal to Rcfatullah Mondal on the Magh, 1347 B. s and he transferred the said land by oral gift to his wife Nayjan Nessa and mutated her name and paid rent, that Tarcsh Haider transferred the rent receiving interest to one Maniruddin Biswas by the deeds dated February 15, 1943 and 28. 4. 1943, that during S. A. operation land was recorded wrongly in the name of Jairuddin, the defendants are claiming the land in suit by purchase from the successive heirs of Jitu Mondal.
5. The trial Court decreed the suit on the findings that plaintiff proved his case of possessing the land in suit by bargadar by the evidence of P. Ws. 2 and 3, that no ‘Istafanama’ as well as no ‘Hukumnama’ was filed to prove surrender of possession by Jairuddin and settlement infavour of Jitu Mondal, that plaintiff in support of claim of payment of rent the Government has filed the Exts. 2-2(c). that defendants tried to establish through D. W. 2 their case of surrender by Jairuddin but his evidence was heresay evidence, that D. Ws. 1 and 2 have failed to prove that Jairuddin surrendered his tenancy in favour of Kuran Mondal, that no paper including Hukumnama has been filed to show 5 decimals of land was settled in favour of Rcfatullah, that the dakhilas Exts. C-C(2) filed to prove the case of settlement from Taresh Haider are concocted and fabricated papers, that Ext. B i.e. the kabala by which rent receiving interest was sold is in respect of plot No. 836 which is not a suit plot, that P. W 4 neighbor of the plaintiff has deposed that Jairuddin had homestead in the land in suit, that PWs. have deposed that Jairuddin was the owner of the land in suit and that he used to possess the same through bargadar, that the plaintiff has got right, title and possession in the land in suit and that defendants disMiraiion Ncssa (Md. Ruhul Amin .1) III ADC (2006) possessed her. The trial Court also held that the suit as framed is quite maintainable and that not haired by limitation and also not bad for defect of party.
6. The defendant went on appeal. The appellate Court primarily placing reliance on the Ext. B and B (8) i. e. kabalas by Kuran Mondal’s son Taresh Haider selling the rent receiving interest on 15.2.1943 and 28.4.1943 infavour of one Maniruddin held that those 2 documents ‘are sufficient” to prove the surrender of the suit land by Jairuddin to Kuran Mondal. The appellate Court considered those 2 documents as the sufficient material to prove the case of surrender by Jairuddin since his name did not appear in the said 2 documents and thereupon held that neither Jaridudin for his heirs were the owners of the suit land but Faizuddin and Rafatullah were the actual owner” of the land in suit. The appellate Court was of the view that the learned Munsif decreed the suit without taking into consideration those 2 documents and the appellate Court was of the view that defendants “were the bonafide purchaser for consideration from the rightful owners” i. e. Refatullah and Faizuddin, the appellate Court though found substances in the contention
of the plaintiff respondent that defendants have neither proved by oral evidence nor by filing ‘Lstafanama’ and Hukumnama” to establish their case of surrender by Jairuddin but held that non-production of those documents and that absence of oral evidence do not go to show that the Exts. B and B (8) are not genuine and that the said documents being genuine are sufficient to prove the fact of surrender by Jairdudin of his korfa tenancy in favour of Kuran Mondal under whom Jairuddin was the korfe tenant. On the aforesaid findings the appellate court set aside the judgment of the trial Court.
7. The plaintiff then moved the High Court Division in revisinal jurisdiction and obtained Rule in civil revision number as mentioned hereinbefore.
8. The High Court Division on the finding that neither the ‘Istafanama’ nor the ‘Hukumnama’ was produced from the side of the defendants, that defendants’ claim of surrendering of korfa tenancy by Jairuddin has not been established upon leading evidence, oral and documentary, that defendants did not prove suiTender by korfa tenancy by Jairuddin, nor proved the settlement by Kuran Mondal or Taresh Haider son of Kuran Mondal, that plaintiff proved his right, title, interest and possession in there land in suit and dispossession by the defendants from the land in suit by reliable oral evidence, that the finding on the basis of which trial Court decreed the suit were not reversed by the appellate court, that defendants alleged case of surrender of korfa tenancy by Jairdudin has not been established by legal evidence and that evidence, both oral and documentary, to that effect is lacking, that S. A record in the name of Alfajuddin and Rafatullah was prepared wrongly since tenancy of jairuddin was not surrendered at any point of time in favour of kuran Modnal. Finally the High Court Division held that question of surrender by Jairdudin in favour of Kuran Mondal could not be established by the defendants and as such their claim in respect of the land in suit was not legal and they illegally dispossessed the plaintiff.
9. It may be mentioned trial Court on consideration of the oral evidence arrived at the finding that the plaintiff was in possession of the land in suit and he was dispossessed therefrom by the defendants. The plaintiff led evidence to prove his mode of possession through the bargadar. It was the case of the plaintiff that his bargadar planted bamboo in the land in suit. The appellate Court disbelieved this version of the plaintiff’s case which was proved by reliable evidence, upon observing “Bamboo cultivation through the Bargadar is unknown and not in practical practice of this country. So, this facts can not be believed”. The fact of bamboo plantation in the land in suit finds support from the evidence of D.Ws. 2 and 3. It may also be mentioned the appellate Court set aside the judgment and decree of the trial Court solely placing reliance on the Exts. B and B(8) whereby Taresh Mondal son of Kuran Mondal sold the rent receiving interest to certain Moniruddin as because in the said documents name of Jairuddin ws absent and thereupon was of the view had Jairuddin been the tenant of Kuran Mondal or for that matter Taresh Mondal his name would certainly have been in the said documents and that absence of Jairuddin’s name in the said documents proved defendants case of suiTender of tenancy by Jairuddin in favour of Kuran Mondal. The trial Court on consideration of the oral evidence along with the documentary evidence i.e. S.A. and R.S. record as well as IZxts. 2-2(c) rent receipts arrived at a finding that the plaintiff has right, title and interest in the land in suit and she was disposed from the land in suit. The appellate Court did not at all consider the oral evidence of the parties. The defendants tried to prove their case of ‘Istafanama’ by Jairuddin in favour of Kuran Mondal by the evidence of D.W.2. The trial Court discarded the evidence of said witness beins heresay one. On our scrutiny of the evidence of D.W.2 we find the evidence of the said witness hit by the rule of heresay and as such we are of the view trial Court has rightly left out of consideration the evidence of
D.W.2 We also find evidence of” D.W.2 contradictory. The Defendants tried to prove their case of settlement by Taresh Mondal alias Taresh Haider son of Kuran Mondal alias Kuran Haider through the evidence of D.W.3 who is nephew of Jitu Mondal, the alleged settlement holder. The witness has stated tht he is unable to say the dale and the year of settlement by Taresh Mondal. It may be mentioned the defendants in support of their case of taking settlement from Taresh put into evidence dakhilas Exts. CC(2). The trial Court on scrutiny of the said dakhilas held that the same were fictitious and concocted. The appellate Court did not at all addressed itself to this aspect of the case of the defendants because of which trial Court disbelieved the defendants’ claim of taking settlement of the land in suit from in suit from Taresh Mondal.
10. Leave was granted to consider the contention that in view of the fact that the plaintiff claimed her interest in the land in suit on the basis of purchase made on 19.01.1970 from successors-in-interest of the original tenant Jairuddin and the defendants contested the said claim on the basis of their purchase on 25.11.1976 from the heirs o\’ Jitu Mondal who entered upon and possessed the land in suit in pursuance of surrender by Jairuddin of his korfa tenancy in respect of the land in suit to Kuran Mondal, the original owner, the real question is whether there was surrender by Jairuddin to Kuran Mondal the appellate
Court having dismissed the suit on consideration of the Exts.B and B(8) which proved that the plaintiff’s prcdecessor intcrcst surrendered the suit land to Kuran Mondal but the High Court Division acted illegally in setting aside the judgment and decree of the lower appellate Court without considering that Exts. B and 13(8) which are of about 4 years old on which the lower appellate Court relied for setting aside the judgment and decree passed by the trial Court.
11. The learned Counsel for the appellant submitted that evidence of D.Ws.2 and 3 read with Exts. B and B(8) sufficiently proved the fact of surrender by Jitu Mondal to Kuran Mondal and thereafter settlement to Jitu Mondal and possession of Jitu Mondal, that had Exts. B and B(8) would have taken into consideration by the trial Court and the High Court Division the judgment would not have been the one as given by the trial Court and the High Court Division, that issue in the suit was required to be considered taking into consideration Ext. B and B(8) and the oral evidence of D.Ws. 2 and 3 but the trial Court and the High Court Division did not take the same into consideration while decreeing the suit and reversing the judgment of the appellate Court respectively, that High Court Division set aside the judgment of the appellate court without consideration of the material evidence i.e. material evidence Exts. B and B(8) wherein there were mention of the names of korfa tenants but name of Jairuddin was absent and the said fact proved that he surrender his tenancy and had be not surrendered his tenancy his name would have found place in Exts. B and B(8) and that fact of settlement of the land in suit to Jitu Mondal finds support because of the presence of his name in Exts. B and B (8), that Exts. B and B (8) are of being more than 4 years old there is presumption of correctness thoseof.
12. As against the aforesaid submissions of the learned Counsel of the appellant the learned Counsel for the Respondent No.l submitted that in the leave granting order the real question for determination was correctly set forth i.e. whether there was surrender by Jairuddin of his korfa tenancy to the original owner Kuran Mondal and the said material fact was addressed by the trial Court and the High Court Division upon referring to the evidence, both oral and documentary and thereupon arrived at the finding that there was no surrender of korfa tenancy by Jairuddin to Kuran Mondal. The learned Counsel has also submitted tht the Exts. B and B(8) having not been brought before the Court from the proper custody and that the contents thereof having not been proved and that the presumption of correctness of the said two documents being of more than 30 years old having been rebutted by the plaintiff by proving their possession of the land and preparation of record of right and payment of rent to the Government, the appellate Court merely placing reliance on those two document without considering the oral evidence as well as other documentary evidence at all and that without reversing the reasoning and the finding of the trial Court while discarding Exts. C-C(2) which were filed by the defendants in support of their case of taking settlement of the land in suit and that without reversing and setting aside the finding of the trial Court in discarding the evidence of D.W.2 through whom the defendants tried to prove their case of surrender of the tenancy by Jairuddin to Kuran Mondal and the evidence of D.W.3, through whom defendants tried to establish their case taking settlement of the land in suit and that also without considering the fact of non-filing of Istafanama by Jairuddin and Hukumnama relating to settlement to Jitu Mondal and taht without considering the oral evidence at all set aside the judgment of the trial Court an as the High Court Division on due consideration of the materials on record set aside the judgment of the appellate Court no interference is called for by this Court. The learned Counsel also submitted that the S.A. and the R.S. record were prepared in the name of plaintiff’s vendor as well as in her name and in support thereof Exts. 2-2(C) having been produced, the same along with oral evidence clearly proved possession of the plaintiff. It has lastly been submitted by the learned Counsel tht possession of the plaintiff and the defendants case of surrender of the tenancy by the plaintiff’s predecessor Jairuddin in the background of the evidence on record as can not go together the High Court Division as well as the trial Court were quite correct in finding the right, title and possession in favour of the plaintiff and that also in arriving at the finding that the defendants dispossessed the plaintiff from the land in suit.
13. The appellants for the purpose of establishing their case of surrender of korfa tenancy by Jairuddin in favour of Kuran Mondal and settlement of the land so surrendered by Jairuddin to Jitu Mondal primarily placed reliance on Exts. B and B(8) as well as on the evidence of D.Ws. 2 and 3. It has been submitted that had Jairuddin been a tenant under Kuran Mondal his name would have found place in Exts. B and B(8) and his name being not in the said exhibits it can be concluded that Jairuddin surrendered his tenancy in 1335 B.S. The submissions so made at the first instance appears to be plausible one but on scrutiny of the materials on record i.e. oral evidence as well as documentary evidence led from the side of the plaintiff showing preparation of the S.A. and R.S. record in the name of the plaintiff’s predecessor in interest and in her name respectively and payment of rent
by the plaintiff and of his being in possession of the land in suit and dispossession thereform by the defendants clearly established that plaintiff’s predecessor in interest Jairuddin did not surrender his tenancy and that he owned and possessed the land in suit and thereupon Jairuddin’s heirs sold the land in suit to the plaintiff. From the defendants side it has been asserted that Jairuddin surrendered the tenancy by ‘Istafanama’ and that defendant Nos. 1 and 2 as well as another got the settlement of the land so surrendered by Jairuddin by ‘Hukumnama’ None of the said documents were brought on record from the side of the defendants. The defendants i.e. the appellants tried to prove the matter of ‘Istafanama’ by Jairuddin through the evidence of D.W. 2. As already stated hereinbefore
his evidence being heresay is not legal evidence to establish defendants, case of ‘Istafanama’ by Jairuddin. The appellants tried to establish their case of settlement through the evidence of D.W. 3. It has also been mentioned hereinbefore that he is not a disinterested witness, rather interested witness being nephew of Jitu Mondal through whom the defendants are claiming the land in suit, nature and quality of evidence of D.W.3 has been discussed hereinabove and as such his evidence can not be considered worthy of making conclusion that land in suit was settled with Jitu Mondal on being surrendered by Jairuddin.
14. It has been submitted by the learned Counsel of the appellants that the Exts. B vs Miration Nessa (Md. Ruhul Amin J> III ADC (2006) nd B(2) being the documents of 30 years old have presumption of correctness. The said submission has been made to substantiate the contention that had at the time of registration the contention that had at the time of registration of the aid documents i.e. Exts. B and B(8) whereby rent receiving
interest was sold by Taresh Haider to one Moniruddin, Jairuddin had been korfa tenant of Kuran Mondal the name of Jairuddin would have certainly there. The presumption f correcttes of the fact stated in the document is rebuttable one. The plaintiff by oral as well as documentary evidence has established his case that Jairuddin was a korkfa tenant of Kuran Mondal and on the death of Jairuddin the land owned by him as korfa tenant devolved upon his dauthter Araben Nessa and his nephew Giasuddin who died leaving son Lokman and they i.e Araben Nessa ad Lokman sold the land in 1970 to him. It may be mentioned S.A. record was prepared in the name of Jairuddin andR.S. record was prepared in the name of the plaintiff and he paid rent of the land so recorded in his name by Exts. 22(c) . As against the said state of the matter it was the case of the defendants that S.A. record was wrongly prepared in the name of Jairuddun.
15. On consideration of the materials on record, particularly evidence as to possession of the land in suit by the plaintiff and before that by the heirs of Jairuddin in our view the contention that the S.A. record was wrongly prepared in the name of Jairuddin is not legally sustainable. The R. S. record has been prepared in the name of the plaintiff and she paid rent as mentioned hereinbefore. Since possession of the land in suit was with Jairuddin and thereafter land in suit is possessed by the plaintiff, as since name of Jairuddin does not appear in the Exts. B and B(8) he surrendered his korfa tenancy in favour of Kuran Mondal. Since the defendants alleged that Jairuddin surrendered his tenancy under Kuran Mondal and thereafter Taresh son of Kran Mondal settled the land with Jitu Mondal it was for the defedants to establish the said facts since in the absence of non-establishing of the said facts i.e. ase of surrender and the settlement with Jitu Mondal the logical conclusion is that, that Jairuddin did not surrender his korfa tenancy in favour of Kuran Mondal.
16. The defendants tried to establish their case of settlement by producing rnt receipt Exts. C-C(2). The trial Court on scrutiny of the same arrived at the finding that the said exhibits are concocted and spurious and the same have been brought into existence for the purpose of the instant case. In fact had the land been surrendered by Jairuddin to Juran Mondal and that had the same would have been settled with Jitu Mondal in 1345 B.S. the settlement holder i.e. Jitu Mondal had certainly paid rent to Taresh Mondal but no material has been brought in that regard. In the background of the materials brought on record by the plaintiff we are of the view that Jairuddin at no point of time surrendered his korfa tenancy and that on his death the land in suit was inherited by his daughter and nephew and after death of Jairuddin’s nephew, his son Lokman inherited and the plaintiff by purchase from Jairuddin’s daughter and Lokman has acquired right, title and interest in the land in suit and he was dispossessed from the land in suit by the defendants.
17. In the background of the discussions made hereinbefore we are of the view that High Court Division though have not considered the issue involved in the suit i.e. whether there was surrender by Jairuddin his korfa tenancy to Kuran Mondal under whom he was a korfa tenant elaborately but for that it can not be said that High Court Division while setting aside the judgment of the appellate Court did not consider the material evidence. We find from the judgment under appeal the said Division in fact considered the issue involved in the suit i.e. the question of surrender by Jitu Mondal in favour of Kuran Mondal and in the background of the materials on record held that appellate Court did not advert to the findings and decisions of the trial Court and thereupon did not reverse the finding of the trial Court based on evidence. In our view High Court Division was not in error in holding that from the defendants’ side evidence was lacking to establish the case of surrender by Jairuddin in favour of Kuran Mondal.
18. Since case of surrender of tenancy by Jairuddin was not established and that as in the background of the materials on record it cannot be said that merely bcause name of Jairuddin is absent in the Exts. B. and B (8) there would be a presumption that he surrendered his tenancy to Kuran Mondal and that as it has been established by the plaintiff tht Jairuddin did not surrender his tenancy, we find no merit in the appeal. Accordingly the appeal is dismissed with cost of Tk. 2,000/Ed.
Source : III ADC (2006), 348.