Appellate Division Cases
(Civil)
PARTIES
Nur Amin and others ……………………………………………Appellants
-Vs-
Abdul Quddus and others……………………………Respondents
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment
23rdMarch 2006 others.
Seeking declaration of title.
It was the case of defendant-appellants that land measuring 2.50 acres of D.S. Plot No. 7825 of Mouza Musapur bearing D.S. khatian No. 2376 was owned by their father Afazuddin Mia and that during diara survey land of the aforesaid plot of D.S. kahtian No. 2376 was wrongly recorded in Diara Plot No. 203/31 in the name of the Government and in the background of the said fact defendant appellants filed Title Suit No. 43 of 1978 impleading the Government as defendant in the said suit Government took objection as to the identity of the land in suit contending that the land of D.S. plot No. 7825 of D.S. khatian No. 2376 is not the land of diara plot No. 203/31 (12)
The High Court Division without setting aside the finding of the last Court of fact arrived at on detailed consideration of the fact arrived at on detailed consideration of the materials on record taht the plaintiff-Respondents filed the suit on the basis of fictitious certified copy of the decree of the Title Suit No. 43 of 1978 reversed the judgment of the appellate Court ‘. (13)
ADVOCATES
Abdul Malek, Advocate, instructed by Md. Ncnvab AH, Advocate-on-record For the Appellants.N. I. Bhuiyan, Advocate-on-Record For Respondent Nos. 1 -4 Not represented Respondent No. 5
JUDGMENT
1. Md. Ruhul Amin J:- This is defendants appeal by leave against the judgment dated July 31, 2000 of a Single Bench of the High Court Division in Civil Revision No. 356 of 1990 making the Rule absolute upon setting aside the judgment and decree dated October 9. 1989 of the Court of District Judge, Noakhali, in title Appeal No. 282 of 1987 allowing the same and thereby dismissing the suit upon reversing the judgment and decree dated November 18, 1987of the court of Assistant Judge, Upazilla- Companiganj, Noakhali in Title Suit No. 54 of 1985 decreeing the same. The Suit was filed seeking declaration that the judgment and decree dated 18.2.1980 passed in Title Suit no. 43 of 1978 is null and void and the same is inoperative in respect of the land described in the schedule attached to the plaint.
2. The suit was filed stating, enter alia, that land of plot No. 203 of Mouza Dakhin Musapur was recorded in the name of the Government in Khas khatian No. 1, that the said plot comprises 100.80 acres of land, that Government took decision to settle the said land by sub-plotting to different persons, that Mohammad Mia, lather of the plaintiffs, a retired defense person, took settlement of 2.50 acres of land of sub-plot No. 203/31 of plot No. 203 in 1968-69 on payment of salami amounting to TK. 125/D. C. R dated April 24, 1970 and paid rent
for the year 1376 B. S. by the rent receipt dated April 24,1970 and he went into possession in 1970, that on the death of Mohammad Mia the plaintiffs were substituted in the settlement case on December 20, 1972 and kabuliyat was executed infavour of the plaintiffs by the Government on July 11, 1981 that defendant nos. 1-5 as plaintiffs instituted Title Suit No. 43 of 1978 in the 2 n d court of Monsif (now Assistant Judge), Noakhali impleading Government as defendant and obtained decree in respect of the land of sub plot No.203/31 on February 14, 1980, that in the said suit i. e. Title Suit No. 43 of 1978 plaintiffs were not made parties, that the defendants on the basis of the decree obtained in Title Suit No. 43 of 1978 got their names mutated in respect of the land of sub plot No. 203 /31, that the plaintiffs came to know from the Revenue Officer, that on obtaining the certified copy of the plaint and the decree it was noticed by the plaintiffs that the plaintiffs of the said suit i. e. Title suit No. 43 of 1978, who are defendant Nos. 1-5 in the instant suit filed the said suit seeking declaration of their title in respect of the land of plot No. 203 and not sub plot No. 203/31 but the defendant Nos. 1-5 surreptitiously inserted in the decree sub plot No. 203/31, that as the said decree in Title Suit No. 43 of 1978 clouded the title of the plaintiffs in respect of the land of plot No. 203/31 they were constrained to file the suit, that cause of action arose on May 20, 1985 on which date they obtained the certified copy of the plaint and the decree of the Title Suit No. 43 of 1978.
3. The suit was contested by the defendant. Nos. 1-5 by filing joint written statement denying the material averments made in the plaint and stating, inter alia, that Afazuddin Mia was the owner and possessor of 2.50 acres of land of plot No. 7825 in Mouza Musapur and in his name D. S. Khatian No. 2376 was prepared, that Afazuddin Mia died leaving the defendants as his heirs and after the death of Afazuddin Mia defendants continued possession, that during the diara survey land of D. S. plot No. 7825 was erroneously recorded in plot No. 203/31 and the Khatian No. 1 was prepared erroneously in the name of the Government, that the said wrong record having had clouded the title of the defendants they were constrained to file Title Suit No. 43 of 1978 seeking declaration of title in respect of 2.50 acres of land of plot No. 203/31 which is identical to the land of D. S plot No. 7825.
4. The Government contested the suit i. e. Title suit No. 43 ofl978 by filing written statement and having had raised objection as to the identity of the land local investigation
was held by survey knowing Advocate Commissioner for ascertaining the identity of the land in suit and the Advocate Commissioner filed his report stating that the land of plot. 203/31 and land of D. S plot No.7825 is identical, that the Government in its written statement did not disclose that the land in suit was leased out to the plaintiff’s predecessor. The suit, i. e. Title Suit No. 43 of 1978 was decreed on contest on February 18, 1980 that the allegation of forgery in the decree of Title Suit No. 43 of 1978 is not true, that plaintiffs have no right, title and interest in the land of plot No. 203/31.
5. The trial Court on consideration of the materials on record decreed the suit upon holding that Ext.2 i.e. kabuiyat shows that the land in suit i. e. land of plot No. 203/31 was settled to plaintiffs father, that plaintiffs of Title Suit No. 43 of 1978 surreptitiously inserted Dag No. 203/31 in the decree of the said suit, that the identity of the land which was the subject matter of Title Suit No. 43 of 1978 was uncertain, that land of plot No. 203/31 was settled to plaintiffs predecessor in 1968-69 and as such in 1978 when the defendant Nos. 1-5 filed Title Suit No. 43 of 1978 they hand no right, title and interest, that plaintiffs were necessary parties in Title Suit No. 43 of 1978 but without impleading them the defendant No. 1-5 obtained decree in the said suit, that in the usual course of transaction it can be said that plaintiffs father on payment of salami obtained possession of the land of plot No. 203/31 settled to him that had the plaintiffs being not in possession
they would not have executed the kabuliyat on July 11, 1981, that on perusal of the plaint of title Suit No. 43 of 1978 it is difficult to say that decree in the said suit was in respect of the land in suit I. e. land of plot No. 203/31, that as the defendant Nos. 1-5 had obtained the decree in Title suit No. 43 of 1978 without impleading the plaintiffs as such the decree so obtained is not binding on the plaintiffs.
6. Defendant Nos. 1-5 went on appeal. The appellate Court on scrutiny of the original plaint (as well as the draft copy of the plaint which was produced before the Court at the time of hearing of the appeal) of Title Suit No. 43 of 1978 arrived at the finding that the plaintiffs of the said suit filed the suit seeking declaration of their title in respect of 2.50 acres of land of Plot No. 203/31 which is identical to the land of D. S. plot No. 7825, that the plaintiffs of title Suit No. 43 of 1978 in the face of objection taken as to the identity of the land by the government prayed for local investigation for ascertaining the identity of the land of plot No. 203/31 and D. S plot No. 7825 and in the petition for ascertaining identity of the land of the said Title Suit No. 43 of 1978 plot No. 203/31 was mentioned and the Civil Court Commissioner on ascertaining the land of D. S plot No. 7825 and Diara plot No. 203/31 submitted the report to the effect that 2.50 acres of land of D. S. plot No. 7825 is identical to 2.50 acres of land of plot No. 203/31 that the decree in Title Suit No. 43 of 1978 was drawn showing plot No. 203/31, that some unscrupulous person
interpolated the decree passed n Title Suit No. 43 of 1978 by overwriting figure 31 with a motive to show that the said figure has been inserted therein, that in the said figure has been inserted therein, that in the D. C. R. dated April 24, 1970 whereby plaintiff’s father said to have paid salami originally Dag number was 203/11 but later on figure 11 was changed to 31 and the change so made is quite visible in the D.C. R. that no rent receipt has been filed although plaintiffs averred in the plaint that they paid the rent on April 24, 1970, that on the death of plaintiffs father the kabuliyat dated July 11, 1981 was executed in their names and therein plot No. 203/31 was mentioned, that plaintiffs have not filed any paper showing that their father or they were inducted in the land of plot No. 203/31 in 1376 B .S that as the plaintiffs came in the scene in July, 1981 and as such they were not necessary parties in Title Suit No. 43 of 1978 which was decreed in February, 1980, that as the Title Suit No. 43 of 1978 was decreed in presence of the Government in respect of the land of plot No. 203/31 the Government had no right to lease out the land in suit to the plaintiffs, that the plaintiffs have not called for the record to show that their father was the proponent for plot No. 203/31, that the plaintiffs are not competent to build a case on the basis of erroneous certified copy of the plaint upon interpolation of the figure 31 below dag number 203 by unscrupulous person, that the finding of the trial Court that the defendants obtained decree in respect of the block plot No. 203 is not correct since in Title Suit No. 43 of 1978 identity of the land i. e. land of D. S. plot No. 7825 and Diara plot No. 203/31 was ascertained and found identical. The appellate Court on consideration of the evidence of the plaintiffs held that the plaintiffs failed to prove their possession in the land in suit and finally the appellate court held that the plaintiffs have neither title nor possession in the land in suit and thereupon dismissal the suit upon setting aside the judgment and decree of the trial court. The plaintiffs then moved the High Court Division in revisional jurisdiction
and obtained Rule.
7. The High” Court Division upon making the findings that the land in suit stands recorded in the name of the government, that in the plaint of Title Suit No. 43 of 1978 dag number 203 was mentioned but in the decree Dag No. 203/31 was mentioned, that the trial Court disbelieved the case of the defendants, that land of plot No. 203/31 was settled in the name of plaintiffs’ father who paid the salami and went into possession, that insertion of plot No. 203/31 in the decree of Title Suit No. 43 of 1978 was mysterious, that plaintiffs were necessary parties in the Title Suit No. 43 of 1978 and as such decree in the said suit is not binding upon the plaintiffs, that the appellate court did not consider the material fact and thereupon reversed the judgment and decree of the trial Court and that the appellate court wrongly held that the plaintiffs were not in possession inspite of the fact that land in suit was settled to plaintiffs father who on payment of salami went into possession and that plaintiffs case of being in possession of the land has been supported by P. W.2, that the land in suit having been recorded in the name of the Government and the Government having had settled the land to the different lessees including the father of the plaintiffs as back as in 1968-69 and the fact of settlement to the father of the plaintiffs having not been denied by the defendant Nos. 1-5 and that on the date when title suit No. 43 of 1978 was filed by the defendant Nos. 1-5 as the plaintiffs were owning and possessing the land of plot No. 203/31and their names were recorded in the record of right, that plot No. 203/31 was wrongly inserted in the decree of Title Suit No. 43 of 1978 although the said plot was not mentioned in the plaint, that Title Suit No. 43 of 1978 was instituted long after the settlement of plot NO. 203/31 to plaintiffs father and that the plaintiffs of the instant suit were necessary parties in the said title suit made the Rule absolute upon observing that the trial Court “rightly decreed the suit in part but the learned district judge reversed the judgment and decree against the weight of evidence as such the same is not sustainable in law.”
8. Leave was granted to consider the contentions that in Title Suit No. 43 of 1978 there was local investigation for establishing identity of land of D. S plot No. 7825 and the land of Diara plot No. 203/31 and the report of the survey commissioner was that the land of the said plots is identical, that the appellant Court on scrutiny of the materials, particularly D. C. R by which plaintiffs father paid the salami noticed that in the D. C. R plot number was 203/11 but later on by overwriting figure 11 was converted to 31 and that the plaintiffs by calling the record of the settlement case did not establish that the settlement case was initiated in the name plaintiffs father for the settlement of land of plot No. 203/31.
9. The learned Counsel for the appellants submits that the appellants brought sufficient materials on record to establish that Title Suit No. 43 of 1978 was filed in respect of the land of plot No. 203/31 and in the said title suit Government took objection as to the identity of the land in suit i.e. whether land of D.S. plot No. 7825 comprising 2.50 acres of land identical to the land of Diara Plot No. 203/31 comprising 2.50 acres of land and thereupon by local inspection the identity of the land was ascertained and the identity of the land having been ascertained the Court decreed the suit, i.e. Title Suit No. 43 of 1978, on February 25,1980 against the Government. The decree so passed in Title Suit No. 43 of 1978 was not challenged by the Government. That being the state of the matter the plaintiff-Respondents in whose name kabuliyat was executed by the Government on July 11,1991 were not competent to challenge the title of the defendant-appellants since prior to be the execution of the kabuliyat by the Government the Government ceased to the owner of the land of Diara Plot No. 203/31. The learned Advocate also submits that the appellate Court being the last Court of fact on scrutiny of the materials on record as well as the evidence, both oral and documentary, having had arrived at the finding taht the plaintiffs i.e. Respondent Nos. 1-4 herein filed the instant suit on the basis of fictitious certified copy of the decree in Title suit No. 43 of 1978 and the said finding being based on consideration of the evidence, both oral and documentary, and the appellate Court having had not misread or left out of consideration the evidence in arriving at the said finding the High Court Division without discussing the evidence on record and without arriving at a finding that the aforesaid finding of the appellate Court was based on non-consideration or misreading of the evidence was in serious error in reversing the judgment and decree of the lower appellate Court. The learned Advocate further submits
that the suit i.e. Suit No. 54 of 1985 was filed on the basis of interpolated D.C.R. dated 24.4.1970 (Ext-1) and the finding of the appellate Court that Et. I has been interpolated for the purpose of filing the suit being based on consideration of the evidence and upon scrutiny of the document itself the High Court Division without reversing the said finding of the appellate Court. The learned Adyocate continues that the High court Division having had not reversed the aforesaid finding as regard Ext.l, nor having had held that the said finding of the appellate Court was not based on evidence or rather to the contrary to the evidence on record was in error in reversing the judgment of the lower appellate Court. It has been submitted by the learned Advocate for the appellants that there is no holding in the name of the plaintiffs and also there is no khatian in the name of the plaintiffs in respect of the land in suit and that no material was placed on record from the side of the plaintiffs to show taht on the partial payment of the salami plaintiffs’ father was inducted into the land for the settlement whereof the Settlement Case No. 20973 of 1968-69 was started.
10. As against the aforesaid submissions of the learned Advocate for the appellants the learned Advocate-on-Record submits that the High Court Division has quite legally set aside the judgment of the appellate Court since prior to the filing of the Title Suit No. 43 of 1978 was filed and that as in Title Suit No. 43of 1978 plaintiffs were not made parties the judgment and decree therein is not binding on the plaintiffs. The learned Advocate-on-Record also submits taht the High Court Division on consideration of the evidence of P.W.2 has quite correctly held that the plaintiffs are in possession of the land in suit. The learned Advocate-on-Record further submits that the High Court Division was quite correct in holding “on the date of institution of the Title Suit No. 43 of 1978 the plaintiffs owning and possessing the suit land and their names were recorded in the records of right
but in the decree Dag No. 203/31 was wrong inserted although it was not written in the plaint. Since the Title Suit No. 43 of 1978 was instituted long after the settlement of the suit land in the name of the plaintiffs’ father, the plaintiffs were necessary parties in the suit and the learned Assistant Judge rightly decreed the suit in part….”
11. The plaintiffs filed the D.C.R No. 40388 dated 24.4.1970 (Ext. I, though in the judgment of the appellate Court referred as Ext. 5) to show taht their father paid salami having land of plot No. 203/31 settled to him. Lower appellate Court scrutiny of the of the said Ext. I arrived at the finding that in the said D.C.R. originally Plot number was 203/31 and subsequently the same was changed to 203/31. It may be mentioned from the plaintiffs’ side no paper was filed to show that after payment of part of the salami they were inducted into possession. On the death of plaintiff’s father kabuliyat was executed in favour of the plaintiffs’ father kabuliyat was executed in favour of the plaintiffs on July 11,1981. There is no khatian in the name of the plaintiffs. The plaintiffs also did not file any rent receipt to establish that settlement case was initiated to settle land of plot No. 203/31 in the name of plaintiffs’ father; the record of settlement case was not brought before the Court.
12. It was the case of defendant-appellants that land measuring 2.50 acres of D.S. Plot No. 7825 of Mouza Musapur bearing D.S. khatian No. 2376 was owned by their father Afazuddin Mia and that during diara survey land of the aforesaid plot of D.S. kahtian No. 2376 was wrongly recorded in Diara Plot No. 203/31 in the name of the Government and in the background of the said fact defendant-appellants filed Title Suit No. 43 of 1978 impleading the Government as defendant in the said suit Government took objection as to the identity of the land in suit contending that the land of D.S. plot No. 7825 of D.S. khatian No. 2376 is not the land of diara plot No. 203/31. Thereupon plaintiffs of the said suit i.e. Title Suit No. 43 of 1978 filed an application for ascertaining identity of the land
in suit by a survey knowing Advocate Commissioner, that the land of D.S. plot No. 7825 of D. S. khatian No. 2376 and the land of Plot No. 203/31 was relayed by a survey knowing Advocate Commissioner and he submitted the report in the affirmative i.e. land of diara plot No. 203/31 is identical to the land of D.S. Plot No. 203/31 is identical to the land of D.S. Plot No. 7825 of D.S. khaintian No. 2376. Thereupon suit was decreed on February 25,1980. It may be mentioned kabulayat in the name of the plaintiffs was executed on July 11,1981. In that state of the matter no title as regard the land said to have been settled to the plaintiffs vested on the execution of the kabuliyat. Since kabuliyat in the name of plaintiffs was executed on July 11,1981 and as such while Title Suit No. 43 of 1978 was filed plaintiff- Respondents were not necessary parties because at the time of filing the suit title as regard the land of said title suit was with the Government and accordingly Government was impleaded as defendant in the said suit and the Government contested the suit and the suit was decreed on contest in favour of the defendant appellants. In the afore state of the matter the High Court Division, in our view, was in serious error in holding taht in Title Suit No. 43 of 1978 plaintiff-Respondents were necessary parties as kabuliyat was executed in their names on July 11,1981. It may be mentioned by the decree dated February 25,1980 in Title Suit No. 43 of 1978 title in respect of the land of plot No. 203/31 vested in the defendant -appellants. As stated hereinbefore although High Court Division observed that the record of right was in the name of the Respondent Nos. 1-4 herein but the said finding was made quite contrary to the materials on record in that record of right, if any, could be prepared in the name of the Respondent Nos. 1-4 only after execution of the kabuliyat i.e. after July, 1981. The High Court Division has bserved that the possession of plaintiffRespondents in the land in suit was proved by the evidence of P.W.2. With due deference to the learned Judge of the said Division we like to observe the learned Judge without discussing the evidence of the P.W. 2 made the finding as regard possession of plaintiff-Respondents.
13. The appellate Court on discussion of the evidence of P.W. 2 discarded the evidence of the said witness since the witness was a different village and that could notsay the land in suit is of which particular mouza. The appellate Court also noticed taht the witness is not a man of locality where the land in suit situates and also the witness has no land in the neighborhood of the land is suit. Since the Court of fact on due scrutiny and consideration of the evidence of P.W.2 found him as unreliable witness on the question of possession of the plaintiff-Respondent Nos. 1-4 in the land in suit the High Court Division in the absence of arriving at a finding that the consideration of the evidence as made by the last
Court of fact perverse was in error in holding that P.W. 2 proved the possession of the plaintiff-Respondent Nos. 1-4. It may be mentioned that plaintiff No. 4 examined himself as P.W. 1 and examined P.W.2 in support of their case. The High Court Division without setting aside the finding of the last Court of fact arrived at on detailed consideration of the fact arrived at on detailed consideration of the materials on record taht the plaintiff-Respondents filed the suit on the basis of fictitious certified copy of the decree of the Title Suit No. 43 of 1978 reversed the judgment of the appellate Court. It has not been held the High Court Division that the finding of the lower appellate Court as to that plaintiffs filed the suit on fictitious certified copy was contrary to the evidence on record or that was based on non-consideration and mis-reading of the evidence. In the absence of said situation the High Court Division in its revision-al jurisdiction was not well founded in law to set aside the finding of the last Court of fact. The lower appellate Court on examination of the papers filed by the defendant-Respondents in support of their case held that in the plaintiff of Title Suit No. 43 of 1978 plot No. 203/31 was mentioned, but
some unscrupulous persons blurred the figure 31 by over writing and thereafter replaced the said figure by different ink” with motive to show that the number ‘311 was subsequently inserted below the number ‘203’ with motive to create suspicion” The lower appellate Court also noticed that in D.C.R. No. 40388 dated 24.4.1970 (Ext. I) originally plot number was 203/11 but later on the same was changed to 203/3. The aforesaid finding of the appellate Court is based on 5 critical examination of the D.C.R 9Ext. I). It may be mentioned that had the plaintiff-Respondent Nos. 1-4 were in enjoyment of the land or in other words had plaintiff’s father was inducted into possession of the land on the date of payment of the part of the salami on 24.4.1970 they would have certainly paid rent for the period starting from April 24,1970 till the date of execution of the kabuliyat on July 11, 1981 but from the plaintiff- Respondent Nos. 1-4’s side no rent receipt was filed although pleaded that they paid rent. The lower apellate Court also noticed that no khatian was opened in the name of the plaintiff-respondent Nos. 1-4. The appellate Court on consideration of the aforesaid facts as well as the other materials on record as mentioned hereinbefore arrived at a finding that plaintiff-Respondent Nos. 1-4 were not in possession of the land in suit. It may be mentioned in Title Suit No. 43 of 1978 the Government raised question of identity of the land of D. S. Plot No. 7825 of D.S. khatian No. 2376 with the land of diara plot No. 203/31 of khatian No. 1. In the background of the said objection raised by the Government plaintiff of Title Suit No. 43 of 1978 filed an application for relaying the land by survey knowing Advocate Commissioner. The lower appellate Court on perusal of the application so filed noticed that therein plot No. 203/31
was written. The lower appellate Court examined the original plaint of Title Suit No. 43 of 1978 and noticed that the plaintiffs filed the suit seeking declaration of title in respect of plot No. 203/31. The defendant- appellants filed sufficient materials before the Court wherefore the appellateCourt was satisfied that the Title Suit No. 43/31. The High Court Division without considering the materials noticed and considerd by the lower appellate Court in arriving at the finding that Title Suit No. 43 of 1978 was filed in respect of the land of plot No. 203/31 and the said suit was contested by the Government and the Court
decreed the suit in favour of the plaintiffs, i.e. the appellants herein set aside the judgment
of the lower appellate Court. It is seen from the judgment of the High Court -$ Division tht the said Division set aside the judgment of the appellate Court without arriving at the finding that the findings arrived at by the last Court of fact i.e. lower appellate Court was not based on evidence or that contrary to the evidence on record or that the lower appellate Court made the findings while dismissing the suit without considering as well as upon misreading the evidence on record. The revisional jurisdiction of the High Court Division in interfering with the finding of fact arrived at by the last court of fact is limited to the one or ^ more situations as stated herein over and in the absence of the said state of the matter it is beyond the jurisdiction of the said state of the matter it is beyond the jurisdiction of the High Court Division to interfere with inding of fact of the lower appellate Court and thereupon to reverse the judgment of the lower appellate Court. In the background of the discussions made hereinbefore we find merit in the appeal. Accordingly the appeal is allowed with cost of TK. 5,000.
Source : III ADC (2006), 457.