PARTIES Md. Ziarat Hossain Vs. Md. Jaher Ali and others

Appellate Division Cases

(Civil)

PARTIES

Md. Ziarat Hossain…………… Petitioner.

-Versus-

Md. Jaher Ali and others…………. Respondents.

JUSTICES

Md. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 7th August 2006

The Special Relief Act, Section 9

Praying for restoration of the possession of the suit land on the averments that the suit land originally belonged to Abdul Molla, Sabdul Molla and Jabdul Molla and C.S. Khatian No. 12 was prepared showing them as tenants of l/3rd share each……… ………(2)

As it appears the High Court Division found that P.W. 1 himself stated in the cross examination that there had been a shop at plot No.31 the suit land and that P.W.2 in his examination-in-chief stated that the suit land has been possessed by the defendants for the last 5/7 years and in his cross-examination stated that Civil Petition Zaher, the defendant iNo.l, has been possessing the suit land i.e. plot No.31 and that the defendants have been possessing the suit land since their purchase and likewise P.W.3 in his examination-in-chief stated that the defendants have been possessing the suit land for the last 5/6 years and in cross-examination stated the defendants have been possessing the suit land since their purchase from Jobdul IYlollah. The High Court Division also found that of all the P.Ws. except of P.W. 1 none has uttered a word as to the dispossession of the plaintiff from the suit land by the defendants on 15.10.1998 and/or that the plaintiff was in possession of the suit land prior to the alleged dispossession by the defendants on 15.10.1998. The High Court Division further found that in order to succeed in a case under section 9 of the Specific Relief Act the plaintiff has to prove his possession of the suit land prior to dispossession as alleged in the plaint and also that the suit was filed within 6(six) months from the date of dispossession but in the instant case the plaintiff failed to prove his possession of the suit land prior to forcible dispossession by the defendants on 15.10.1998. Accordingly the High Court Division made the Rule absolute.

………………………………….(4)

Md. Nawab Ali, Advocate-on-Record…………………… For the Petitioner.

Sufi a Khatun, Advocate-on-Record. ……………….For the Respondents

For Leave To Appeal No. 537 of 2005

(From the judgment and order dated 4th January, 2005 passed by the High Court

Division in Civil Revision No. 3313 of 1999).

JUDGMENT

MD. TAFAZZUL ISLAM J: This petition for leave to appeal arises out of judgment

dated 4.1.2005 passed by a Single Bench of the High Court Division in Civil Revision 3313 of 1999 making absolute the Rule which was obtained against the judgment and decree dated 19.8.1999 passed by the learned Senior Assistant Judge, 1st Court, Gazipur in Title Suit No. 346 of 1998 decreeing in the suit.

2. The plaintiff/petitioner filed the above suit under section 9 of the Special Relief Act praying for restoration of the possession of the suit land on the averments that the suit land originally belonged to Abdul Molla, Sabdul Molla and Jabdul Molla and C.S. Khali an No. 12 was prepared showing them as tenants of 1 /3rd share each; Jabdul Molla died leaving behind only daughter Moymanncssa and S.A. record and R.S. record were prepared in her name and she sold the suit land in favour of Abirjan by registered sale deed dated 31.7.74; Abirjan then sold the suit land to Alekjan, the mother of the plaintiff,

on 13.3.1976 and thereafter Alekjan gifted the same in favour of the plaintiff; while the plaintiff was possessing the suit land by mutating his name the defendants, on 15.10.I998~at 9 A.M, forcibly took possession of the suit land and constructed 2 (two) tin chhapra and the defendants inspite of repeated requests refused to restore the vacant possession of the same to the plaintiff. The defendants contest the suit by filing written statement stating, inter alia, that the suit land originally belonged to Abdul Molla, Sabdul Molla and Jabdul Molla and while they were in possession of the same Jobdul Molla died

leaving behind one brother Abdul Molla and one daughter Moyinanncssa; while in ejmali possession Moymanncssa sold out 2.81  acres of land of plot Nos. 30. 31 and 32 along with some other lands in favour of Joynal Abedin by registered sale deed No. 10880 dated 1.11.75 and also made over possession of the same to him; Abdul Molla died leaving behind two sons Joynal Molla and Ketu Molla and 5 daughters Karimanncssa, Rupjan, J ami ran and two others; Joynal Molla sold . 16 acres of land from plot Nos.31 and .33 acres from plot No.32, in total .49’/2 acres, infavour of the defendants; Joynal Molla sold .66 acre’s of lands on 12.9.75 in favour of the defendants by 2 registered

deeds and he also sold .33 acres of lands from plot No. 31 by registered sale deed No. 193 dated 11.11.75 in favour of Abdul Mazid; Abdul Ma/id then sold .26 acres of land in favour of the defendants by registered sale deed No. 4322 dated 30.5.93 and made over possession of the same to them; Karimannessa daughter of Abdul Molla sold ‘out . 12/2 acres from plot No. 31 and 12 acres from plot No. 32 infavour of the defendants by registered sale deed no. 11394 dated 23.9.89 and she again on 24.1.94 by registered sale deed No. 774 sold out .04 acres from plot No.31 and .04 acres from plot No.32 and made

over possession of the same to Zaher Uddin; then Abul Kashim son of Zamiron having died leaving behind six sons Abul Hossain, Annas All, Makbul Hossain, Ansar Ah, Ibrahim and Hazrat Ali and four daughters i.e. Sufia khatoon, Kohinoor Begun, Feroza Khatun and Fatema Khatoon who then sold .1 0 acres of land from plot Nos.31 and 32 in favour of the defendants. The defendants, by purchasing land from plot No. 31 as above

mutated their names and possessing the said lands by constructing homestead and shops therein and cultivating the rest of the properties. The learned Senior Assistant Judge, after hearing, decreed the suit. As against that the petitioner moved the High Court Division and obtained Rule in”Civil Revision No. 3313 of 1993 and the High Court Division, after hearing, made the Rule absolute.

3. The learned counsel for the plaintiff petitioner submits that the plaintiff being in possession within the fixed boundaries and also led evidence, both oral and documentary,

the trial court decreed the suit and the High Court Division acted illegally in deciding the possession of the suit land in favour of the defendants on misreading the evidence and the High Court Division also failed to consider that the suit land is a part of a bigger plot belonging to may co-shares and the claim of the defendants regarding their alleged title is

dependant on proving many successive transfers in respect of the suit land and the High Court Division acted illegally in holding that the plaintiff failed to prove dispossession.

4. As it appears the High Court Division found that P.W. 1 himself stated in the cross examination that there had been a shop at plot No.31 the suit land and that P.W.2 in his examination-in-chief stated that the suit land has been possessed by the defendants for the last 5/7 years and in his cross-examination stated that Zaher. the defendant No. 1, has been possessing the suit land i.e. plot No.31 and that the defendants have been possessing the suit land since their purchase and likewise P.W.3 in his examination-in-chief stated

that the defendants have been possessing the suit land for the last 5/6 years and in cross-examination stated the defendants have been possessing the suit land since their purchase from Jobdul Mollah. The High Court Division also found that of all the PWs. except of P.W. 1 none has uttered a word as to the dispossession of the plaintiff from the suit land by the defendants on 15.10.1998 and/or that the plaintiff was in possession of the suit land prior to the alleged dispossession by the defendants on 15.10.1998. The High

Court Division further found that in order to succeed m a case under section 9 of the

Specific Relief Act the plaintiff has to prove his possession of the suit land prior to dispossession as alleged in the plaint and also that the suit was filed within 6(six) months from the date of dispossession but in the instant case the plaintiff failed to prove his possession of the suit land prior to forcible dispossession by the defendants on 15.10.1998. Accordingly the High Court Division made the Rule absolute.

5. We are of the view that the High Court Division on consideration of the evidence and the materials on record arrived at a correct decision. The learned counsel could not point out any misreading of evidence or non consideration of the materials on record or any illegality or infirmity in the decision of the High Court Division so as to call for any interference.

6. The petition is dismissed.

Source : V ADC (2008), 239