Mohiuddin and others VS. Shwkat Ali and others

Appellate Division Cases

(Civil)

PARTIES

Mohiuddin and others……………………………………. Appellants

-vs-

Shwkat Ali and others ………………………………….Respondents

The trial court in consideration of the evidence found that D. W. 1 could not bring home the claim of granting dakhilas by the predecessor of the plaintiffs in favour of the defendants predecessor. The trial court as well as the court of appeal below disbelieved D.Ws.l and 2 in this regard. The kabuliyats produced by the defendant appellants being registered documents much emphasis has been given by the learned counsel of the appellants and also the trial Court and the court of appeal below. But it will suffice to say that the kabuliyats without any patta cannot give rise to title. In the instant case no patta could be produced by the defendants. Execution of kabuliyats unilaterally as produced by the defendants, do not give the defendant appellants any semblance of title (8)

Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record……………………….. For the Appellants

T. H. Khan, Senior Advocate, instructed bv Abul Quasem, Advocate-on-Record …………………………………………..For Respondent No. 1.

Ex-parte…………………………………Respondent Nos. 2-10.

JUDGMENT

1. Amirul Kabir Chowdhury J:- Being aggrieved by judgment and order dated 31.07.1997 in Civil Revision No. 1730 of 1992 passed by a Single Bench of the High Court Division the defendant appellants preferred this appeal.

2. The facts, in short, are that the plaintiff respondents filed Title Suit No. 175 of 1985 in the Court of Assistant Judge, Jhenaidha praying for declaration of their title and confirmation of possession and alleging dispossession from the suit property. During pendency of the suit a further prayer was made by amendment of the plaint for recovery of” poassession. The case of the plaintiff respondents was that the suit lands belonged to their predecessor in interest Amir Ali who died leaving the plaintiffs as his heirs and they were in possession of the suit lands and the defendants denied their title on the plea of settlement taken by Mojibur Rahman predecessor of the aforesaid defendants and that the defendants wrongly prepared the record of rights in their names. The defendant Nos I, 2, 4 and 5 contested the suit by filing a joint written statement contending, inter, alia, that Amir Ali took loan when he was on his death bed from Mojibur Rahman, predecessor of the defendants and agreed to make settlement of the property in exchange and that Amir Ali gave direction to his heirs, the present plaintiffs who were minors at that time except Mujibunnessa and Dilzan Nessa, the two wives of Amir Ali, to execute necessary document in favour of Mojibur Rahman. The heirs of Amir Ali accordingly made settlement of the suit land in favour of Mojibur Rahman. In pursuance of the settlement Mojibur Rahman executed three kabuliyats in favour of the plaintiffs who granted rent receipts on realization of rents. The S. A record of right was prepared in the names of the defendants who are in possession of the suit land.

3. The learned Assistant Judge, Jhenidah dismissed Title Suit No. 175 of 1985 on 27.03.1991. On appeal, the learned District Judge, Jhenidah affirmed the judgment of the trial court in Title Appeal No. 55 of 1991 on 14.03.1992 holding that the plaintiffs failed to prove their possession within 12 years preceding the institution of the suit. The lower appellate court as the last court of fact disbelieved the story of dispossession of the plaintiffs on 15.04.1985 and dismissed the suit. A learned Single Judge of the High Court Division in Civil Revision No. 1730 of 1992 set aside the concurrent judgments of both the courts below on 31.07.1997 . Against the aforesaid judgment and order the petition for leave to appeal was filed by the defendant appellants .After hearing Mr. Khandker Mahbubuddin Ahmed, learned Counsel for the defendant appellants leave was granted giving rise to this appeal.

4. Mr. Khandker Mahbubuddin Ahmed, learned Counsel appearing for the defendant appellants submits, inter alia, that the learned Single Judge of the High Court Division erred in law in setting aside the concurrent finding of facts of both the courts below with regard to the possession of the defendant appellants and the plaintiffs failed to prove their possession within 12 years preceding the institution of the suit. The suit was liable to be dismissed and the trial Court as well as the lower appellate court dismissed the suit accordingly.

5. He further submits that the learned Single Judge of the High Court Division illegally reversed the concurrent findings of fact arrived at by both the courts below.

6. Mr. T. H. Khan, learned Counsel, appearing on behalf of the respondent No. 1 submits, inter alia, that Amir Ali, the predecessor in interest of the plaintiffs was admittedly the owner of the property and that there being no evidence of any right, title or possession of the defendants, the learned Single Judge of the High Court Division correctly decreed the suit.

7. He further submits that the documents produced on behalf of the defendant appellants including the dakhilas alleged to have been granted by Amir Ali the predecessor of the plaintiff respondents could not be proved by the defendants witnesses themselves i. e. D Ws. 1 and 2 and as such the defendants claim of title or possession in the suit land has got no leg to stand. Placing the judgment of the High Court Division Mr. Khan, submits that the learned Single Judge has correctly reversed the erroneous findings of the courts below and as such the judgment of the High Court Division is above board.

8. We have considered the submissions made at the Bar and perused the materials on record. It appears that both the parties admitted Amir Ali predecessor of the plaintiff respondents to be the original owner of the suit properly. That being the position the plaintiffs claim merits consideration unless their claim is dislodged by any satisfactory evidence to the contrary. In denial of the claim of the plaintiff respondents, evidence has been adduced on behalf of the defendant appellants. The evidence includes oral and documentary.

The trial court in consideration of the evidence found that D. W. 1 could not bring home the claim of granting dakhilas by the predecessor of the plaintiffs in favour of the defendants predecessor. The trial court as well as the court of appeal below disbelieved D.Ws.l and 2 in this regard. The kabuliyats produced by the defendant appellants being registered documents much emphasis has been given by the learned counsel of the appellants and also the trial Court and the court of appeal below. But it will suffice to say that the kabuliyats without any patta cannot give rise to title. In the instant case no patta could be produced by the defendants. Execution of kabuliyats unilaterally as produced by the defendants, do not give the defendant appellants any semblance of title. If the kabulyats and the dakhilas are kept out of consideration what else remains for the defendants to stick to their claim?

9. It has been emphasized on behalf of the defendant respondents that record of rights standing in their names and subsequent payment of rent exclude the possibility of existence of any right or title of the plaintiff respondents. Mr. khan referring to such contention submits that on the cloak of valueless kabuliyats the defendants misleading the survey staff got their names recorded in the record of rights and based on such wrong record of rights, the defendants obtained rent receipts showing payment of rent. In view of the facts and circumstances and materials on record this contention of the learned Counsel for the plaintiff respondents cannot be brushed aside

10. After considering the facts and circumstances we are of the opinion that the learned Single Judge of the High Court Division did not commit any error in decreeing the suit in favour of the plaintiff respondents.

11. We have gone through the judgment and order passed by the High Court Division and in view of the discussion made above we do not like to interfere with the same.

12. On the reasonings stated above, we do not find any substance in this appeal, which is, therefore, dismissed o” contest without any order as to costs.

Ed

Source : III ADC (2006), 37.