Appellate Division Cases
(Civil)
PARTIES
Padma Bibi being dead, her heirs: 1(Ka) Mohammad Rashid & other….Petitioners.
-Vs-
The Headmaster & Secretary, Moheshkhali High School & others…… .Respondents.
JUSTICES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 2nd Aprl 2006
Praying for declaration of title, confirmation of possession and also permanent injunction in respect of the suit land…………………….. (2)
The settled principle of law is that the plaintiff is to prove his/her own case but in support of plaint case the plaintiffs, except R.S. Khatian, did not produce any other document or any rent receipt and that plaintiff No.l, who deposed as P.W. 1,
but this R.S. Khatian was prepared as back as in the year 1932 and the plaintiffs did not produce any other document to prove that they are still maintaining possession of the suit land and in cross examination P.W. 1 admitted that
The High Court Division considering the above aspect of the matter held that since there is no genealogy to connect the plaintiffs with the R.S. recorded tenant Mansur Ali and the lower appellate Court without any materials on record held that plaintiffs have been able to prove that they are the successive heirs of Mansur Ali whereas on the other hand D.Ws. 1 and 4, who are teacher of the school and D.Ws.2, 3 and 5 who are local businessmen, in one voice supported the case of the defendants that since the deed of gift of the year 1944 Moheshkhali High School is in possession of the suit land…… (5)
A.K.M, Shahidul Huq, Advocate-on-Record…………………. For the petitioners
Respondents…………………. Not represented.
Civil Petition For Leave To Appeal No. 1186 of 2004
(From the judgment and order dated 7th January, 2006 passed by the High Court
Division in Civil Revision No. 2100 of 1996).
JUDGMENT
Md. Tafazzul Islam J: This petition for leave to appeal at the instance of the plaintiff is directed against the judgment and order dated 7th day of January, 2004 passed by the High Court Division in Civil Revision No.2100 of 1996 making the Rule absolute upon reversing the judgment and decree dated 08.11.1995 passed by the learned Additional District Judge, Cox’s Bazar in Other Appeal No. 148 of 1986 reversing those of dated 23.08.1986 passed by the learned Munsif (now Assistant District Judge). Ramoo, Cox’s Bazar in Other Suit No. 14 of 1986 dismissing the suit.
2. Padma Bibi, the predecessor of the petitioner Nos. l(Ka) to 1 (Gha) and Dhalu Bibi, the predecessor of the petitioner Nos. 2 to 4, filed Other Suit No. 229 of 1981 in the Court of the learned Munsif (now Assistant Judge), Sadar, Cox’s Bazar, praying for declaration of title, confirmation of possession and also permanent injunction in respect of the suit land contending, inter alia, that the suit land originally belonged to Monsur Ali, father of the plaintiffs who was ralyat under Khirode Chandra Roy, the superior landlord; Monsur Ali while owning and possejsing the suit land got his daughters Padma Bibi and Dhalu Bibi married with their husbands who were domesticated and Monsur Ali constructed dwelling houses in the suit land for their dwelling; after the death of Monsur Ali, Padma Bibi and Dhalu Bibi as well as proforma defendant No.4, their cousin, became owners of the suit land but Padma Bibi and Dhalu Bibi, being poor, the proforma defendant No.4 did not claim any portion in the suit land and lived elsewhere, Padma Bibi and Dhalu Bibi being pardanashin as well as illiterate, during M.R.R. operation, the defendant No.l taking that advantage created M.R.R. Khatian in the name of Maheskhali High School and subsequently the defendant No.l threatened to dispossess the plaintiffs from the suit land hence the suit. The defendant No.l contested the suit and filed written statement, contending inter alia that after the death of Khirode Chandra Roy, Ajit Kumar Roy became the landlord and Monsur Ali having abandoned the suit land Ajit Kumar
Roy took khas possession thereof and thereafter gifted the suit land along with other lands in favour of Moheshkhali High school; the Managing Committee of the school dismissed Mostaque Ahmed Chowdhury, the Assistant Headmaster of the said school and then he out of grudge inducted the plaintiffs in the suit land who then constructed two houses in the suit land and while the defendant No.l took initiative to evict the plaintiffs from the suit land they filed the instant suit. After transfer of this suit to the Court of Assistant Judge, Ramoo Upazilla, Cox’s Bazar the above suit was renumbered as Other Suit No. 14 of 1986. The trial Court after hearing dismissed the suit. The plaintiff then preferred Other Appeal No. 148 of 1986 and the learned Additional District Judge, Cox’s Bazar, after hearing, allowed the appeal; The defendant No.l then moved the High Court Division and obtained Rule in Civil Revision No. 2100 of 1996 and after hearing the High Court Division made the Rule absolute.
3. The learned counsel for the plaintiff/petitioners submits that the High Court Division, committed error in not considering that admittedly Monsur Ali, the predecessor of the plaintiffs, being a raiyat under Khirode Chandra Roy, the superior landlord, owned and possessed the suit land and after his death, the plaintiffs have been owning and ossessing the suit land by constructing dwelling houses thereon and that there is no materials on record to show that during the lifetime of Mansur Ali his possession in the suit was disturbed by the landlord; that by way of continued possession over the statutory period the plaintiffs acquired right title and interest in the suit land; in Ext.2, the Local Inspection Report submitted by the learned Advocate Commissioner who conducted the inspection stated that D.W.I in his admitted that
and the High Court Division approached the whole case on a wrong way by placing much reliance upon Ext.Ka, the deed of gift alleged to have been executed by Ajit Kumar Roy, without at all considering that the said gift was not acted upon. The learned counsel further submits that the High Court Division from the evidence on record further found that in support of the suit the plaintiffs only produced Exhibit-i, the R.S. Khatian, and no other document was filed to substantiate the case of the plaintiff and in the above R.S. Khatian the name of Khirode Chandra Roy was shown as the superior landlord but under him the name of Mansur Ali, the father of original plaintiffs, was also shown as raiyat and dag numbers 1682 and 1684 are described homestead and khilla and on the other hand the defendant produced as many as 19 exhibits in Ka and Kha series and Exhibit Ka is the deed of gift given by Ajit Kumar Roy in the year 1944 in favour of Moheskhali High School and it includes the suit land and Exhibit Kha (4) is the Duplicate Carbon Receipt, Exhibit Kha(5) to Kha (13) are rent receipts showing payment of rent in the name of the above school and that the trial court, on consideration of Exhibits Ka and Kha series duly I stated that found that the suit land was gifted to the i ^ifis WT above school by Ajit Kumar Roy and the i ?fTCM suit land belongs to the school. j ?rr?r€t ^ffa *TWitpffi wft f^f. i ^r^s *fl?, fe but this R.S.
4. As it appears in the plaint the defendant ! Khatian was prepared as back as in the No.li as Hd and ddwas described Headmasteryear 1932 and the plaintiffs did not pro-Secretary of Moheskhali High School, the duce any other document to prove that defendant No.2 was described as Circle they are still maintaining possession of the Officer Development, Moheskhali, the suit land and in cross examination P.W. 1 defendant No.3 was described as Officer-admitted that C^Rf3 ^srWtfr^ f*T5″t tf in-charge Moheskhali Police Station and j defendant No.4 was merely a proforma;defendant No. 4 and the High Court j 5. As it appears P.W.2, the Advocate Division considering that the plaintiff I Commissioner who made the local inspecfiled the suit on 18.3.81 for declaration of j tion, in his examination-in-chief though their title in the suit land, confirmation of ; stated during inspection he found the their possession and also for permanent; plaintiffs in possession of the suit land and injunction restraining the defendant Nos. j found five dwelling houses and two other 1,2 and 3 from disturbing the peaceful j structures in the suit land and that one of possession of the plaintiffs in the suit land the houses will be 60/65 years old and he and that in the plaint the defendant No.l also saw fruit bearing trees and the age of has been described as Headmaster and one of the mango tree will be 20 years but g y Secretary of Moheskhali High School, j in his cross-examination he stated that held that there is no basis for instituting j the suit against Headmaster or Secretary j
of Moheskhali High School excluding the i It further appears that school itself and how the decree as passed j P.W.3 stated that Mansur had 8/10 broth-by the appellate Court could be executed i ers and their sons are still alive which is specially when the suit land does not \ not the plaint case and P.W.4 in his depobelong to the Secretary or Headmaster of! sition does not also say anything as to the above school and further how the ‘ whether the plaintiffs are successors in defendant No. 1 not being owner of the suit interest of Mansur Ah and P.W.5 also does land could be restrained from disturbing not say anything as to the relationship of the possession of the plaintiffs in the suit plaintiffs with Mansur Ali. The High land and so the suit having been filed Court Division considering the above against a wrong person is not maintain-aspect of the matter held that since there is able. The High Court Division further held no genealogy to connect the plaintiffs with that the settled principle of law is that the i the R.S. recorded tenant Mansur Ali and plaintiff is to prove his/her own case but in j the lower appellate Court without any support of plaint case the plaintiffs, except ! materials on record held that plaintiffs
R.S. Khatian, did not produce any other j have been able to prove that they are the document or any rent receipt and that! successive heirs of Mansur Ali whereas on plaintiff No.l, who deposed as P.W. 1,1 the other hand D.Ws, 1 and 4, who are teacher of the school and D.Ws.2, 3 and 5 who are local businessmen, in one voice supported the case of the defendants that since the deed of gift of the year 1944 Moheshkhali High School is in possession of the suit land.
6. Accordingly we are of the view that the High Court Division on proper appreciation of the materials on record arrived at a correct decision and there is no cogent ground to interfere with the decision of the High Court Division.
7. The petition is dismissed.
Source : V ADC (2008),511