Appellate Division Cases
Most. Rashida Khatun………………….. Appellant.
Sakina Begum and others……………….. Respondents.
Mohammad Fazlul Karim J
Md. Jovnul Abedin J
Judgment Dated: 24th May 2007
The learned Single Judge of the High Court Division committed an error of law in discharging the Rule as a whole wherein the respondent did not claim any title and possession in the ‘Kha ‘ schedule land therefore, suit should have been partly decreed and the Rule should have been made absolute in part and this important aspect of the case has neither been considered by the Courts below nor by the High Court Division thereby a failure of justice has been caused……………. (4)
We also find substance in the point on which leave was granted. Accordingly, we hold that the plaintiff is entitled to relief in respect of R.S. Plot No.4831 having the homestead therein …………………….(10)
In view of the above discussion and reasoning, we find substance in the appeal. …………..(11)
Horendra Nath Nandi, Advocate instructed by Md. Nawab AH, Advocate-on-Record………………………. For the Appellant.
Abu Siddique, Advocate-on-Record. ………………For Respondent Nos. 1-2 and 5-10.
For Respondent Nos. 3-4 and………………………………None represented.
Civil Appeal No.243 of 2002
(From the judgment and order dated 24th day of July, 2001 passed by the High Court
Division in Civil Revision No.4746 of 1991).
Mohammad Fazlul Karim J. This Appeal, by leave, is directed against the impugned judgment and order dated 24.07.2001 passed by a Single Bench of the High Court Division in Civil Revision No.4746 of 1991 discharging the Rule affirming the judgment and decree dated 28.03.1988 in Title Appeal No.321 of 1974 by the Subordinate Judge, 2nd Court, Chittagong reversing those dated 27.09.1974 in Other Suit No.55 of 1972
by the Munsif, North Raozan, Chittagong decreeing the suit.
2. The plaintiff-appellant instituted Other Suit No.55 of 1972 in the Court of the then
Munsif at North Raozan, Chittagong against the respondents praying for declaration
of title and recovery of khas possession of’Ka’ schedule land and also for declaration
of title and confirmation of possession in the ‘Kha1 schedule land along with other reliefs stating, inter-alia, that R.S. Plot Nos.4833 and 4831 originally belonged to Azimuddin Khalifa and both the plots comprised homestead and cartilage. Azimuddin Khalifa sold the said suit plots along with other lands to one Siddique Ahmed Chowdhury by a registered kabala dated 22.05.1904 vide Exhibit-3 and that Siddique Ahmed Chowdhury obtained possession and possessed for 7 years and then sold to Sarfunnessa by a registered kabala dated 22.03.1911 Exhibit-2(c). But the suit property was mortgaged in favour of one Abdul Hoque by a registered deed of mortgage dated 08.01.1897 by Azimuddin Khalifa. For this the mortgage suit No. 148 of 1926 was filed and the said suit was decreed on 12.09.1928, put the decree into execution and the suit property was sold in auction on 12.02.1931 and the decree-holder purchased the suit property. The sale was confirmed on 25.04.1931 in the name of Tozimul Ali. That one Noor Ahmed claiming through Tozimul Ali filed Other Suit No. 13 of 1966 against the plaintiff-appellant but ultimately that suit was compromised admitting the title and possession of the plaintiff-appellant vide Annexure-‘A’. That the defendant No.2 is the wife of defendant No. 1 and defendant Nos.3 and 4 are their sons. That they are men of desperate and dangerous in nature and during the war of liberation they with help of Noor Ahmed and local Chairman Abdul Wadud Chowdhury forcibly dispossessed the ‘Ka’ schedule land on
15.10.1971 and threatened to dispossess from the ‘Kha’ schedule land Hence the suit.
3. The defendant-respondent Nos.l and 2 contested the suit upon filing the written statement by Sona Mia denying the averment of the plaint alleging, inter aha, that
the Sarfunnessa, wife of Azimuddin Khaljfa brought Title Suit No.241 of 1941 against one Hadisur Rahman and others claiming her title in the suit land but she died leaving only brother, Saleh Ahmed and a daughter, Mymuna Khatun and they were substituted in the suit and the suit was decreed. That deceased defendant No.l, Sona Mia was the sister’s son of Saleh Ahmed and was reared up from his childhood and so he sold 0.07 acres of
land from the Suit Plot No.4833 by a kabala dated 21.11.1945, the R.S. Plot No.4833 by a Kabala dated 21.11.1945. That Saleh Ahmed sold half of the suit land in favour of wife of Noor Ahmed and deceased defendant got the same by purchase. The defendant further contended that R.S. Plot No.3571 was acquired by oral gift. Hence, prayed for dismissed of the suit.
4. Leave was granted to consider the submission of the learned Advocate for the leave petitioner that “the learned Single Judge of the High Court Division committed an error of lav/ in discharging the Rule as a whole wherein the respondent did not claim any title and possession in the ‘Kha ‘ schedule land therefore, suit should have been partly decreed and the Rule should have been made absolute in part and this important aspect of the case has neither been considered by the Courts below nor by the High Court Division thereby a failure of justice has been caused.”
5. Mr. Horendra Nath Nandi, learned Advocate, appearing for the appellant submits
that the Single Bench of the High Court Division erred in law in not considering that the Court of appeal below failed to consider the documentary evidence exhibit Nos.6 and 7 and the cross examination of the D.W- 1 that he erected the structure before 8 years. So, the final Court of fact and the High Court Division did not consider that defendant No.l is the sister’s son Saleh Ahmed, husband of the plaintiff. Rashida Khatun and the defendant
No. 1 was reared up by Saleh Ahmed; that neither the Court of appeal nor the High Court Division noticed that the defendant No.l after marriage left the house of the appellant and lived at Dahua and then at Hatha/ari in the house of his father-in-law and thereafter, during the liberation war in collusion with Noor Ahmed and the Chairman, Abdul Wadud
Chowdhury he was forcibly inducted into possession on 15.10.1971 and the suit was filed on 1 7.05.1972 just after liberation.
6. Lastly, the learned Advocate submits that the Single Judge of the High Court Division should have discussed the evidence on record because it is a judgment of reversal, moreover it should have considered the delivery of possession (Exhibit-6) and the sale decree (Exhibit-7) and should have considered that Salah Ahmed accepted the sale and has allowed his wife to take hire upon monthly rental and ultimately his wife the appellant was obliged to purchase by sole decree. So, the deed of the respondent is sham and colourable and the evidence of D.W-1 remained uncorroborated and his document
Exhibit-‘A’ and ‘A(l)1 has not been proved according to law and that view of evidence on record the appeal is liable to be allowed as a whole by modifying the leave granting order. The learned Advocate further submitted that the defendant admitted the possession of the plain-tiffin the homestead at R.S. PlotNo.4831.
7. Mr. Abu Siddique, learned Advocateon-Record, appearing for the respondent Nos.1-2 and 5-10 submits that the so-called auction sale was never acted upon and the auction purchaser never obtained possession or entered into possession. The alleged kabala of the plaintiff claiming purchase of the land in 1958 which is later on point of the kabala of the defendant and thus the plaintiff has not acquired any title inasmuch as the plaintiff has failed to prove possession in ‘Ka’ schedule land. The defendant, however, admitted possession of the plaintiff in R.S. Plot No.4831 as the plaintiffs husband Saleh Ahmed
possessed the same on the basis of an oral gift constructing a muddy homestead and
that barring the same the plaintiff does not have any possession in the land of R.S. Plot no4833.
8. Admittedly the parties have dwelt much regarding R.S. Plot No.4833 and the Court
of Appeal below found that the right, title and possession in schedule ‘Ka’ but has not
disturbed the finding of the trial Court regarding schedule ‘Kha’. The learned Advocate as well did not dispute regarding possession of the plaintiff in R. S. Plot No.3831 and the Court of Appeal below did not reverse the finding of the regarding R.S. Plot No.4831 belonging to plaintiff while reversing the finding of the trial Court regarding R.S. Plot No.4833.
9. The learned Advocates as well did not dispute regarding the ground on which decree was issued.
10. We also find substance in the point on which leave was granted. Accordingly, we
hold that the plaintiff is entitled to relief in Appellate Division Cases respect of R.S. Plot No.4831 having the (Civil) homestead therein.
11. In view of the above discussion and reasoning, we find substance in the appeal.
12. Accordingly, the appeal is allowed in part and dismissed with regard to Plot No.4833 without any order as to costs.
Source : V ADC (2008), 140