Shamsur Nessa Vs. Md.Shajahan Ali

Appellate Division Cases

(Civil)

PARTIES

Shamsur Nessa and another…………………………………… Appellants.

-Vs-

Md.Shajahan Ali and others…………………………………….Respondents

JUSTICE

Md. Ruhul Amin J

K. M. Hasan J

Syed J. R.Mudassir Husain  J

JUDGEMENT DATED : 12th November 2002

The Code of Civil Procedure (V of 1908), Section 115(1).

That it was barred by limitation being filed beyond 4 years from the date of knowledge of the wrong entry in the S.A. khtian and that the plaintiffs could not prove their right, title, interest and possession in the suit land and that the contesting defendants also could not prove the title of their vendor Rajendra Shil in the said land (4)

The suit land upon reassessment of evidence without reversing the material findings and without giving any finding as to how the lower appellate Court committed an error of law within the meaning of Section 115(1) of the Code of Civil Procedure 1908. Procedure. Learned Advocate-on-Record further argued that the Courts below upon consideration of averments made in the plaint and the cause of action for the suit and the evidence lead by the plaintiffs in support of the plaint case rightly held that the suit was barred by limitation and the learned Single Judge of the High Court Division without considering the pleadings and evidence on record wrongly reversed such findings in holding that the suit is not barred by limitation (6)

Civil Appeal No. 112 Of 1997

(From the Judgment and Order dated 28th June, 1994 passedby the High Court Division in Civil Revision No. 184 of 1987 (Dhaka), Civil Revision No. 459 of 1988 (Rangpur).

Nurul Islam Bhuiyan, Advocate-on-Record for the Appellants. Md. Nawab Ali, Advocate-on-Record For the Respondent No. 1. Not represented Respondent Nos. 2 and 4.

JUDGMENT

1. Syed J. R. Mudassir Husain C J:This appeal by the defendant Nos.l and 2 arises out of the leave granted on 21.08.1997 in civil petition for leave to Appeal No. 567 of 1994 against the judgment and order, dated 28^ June, 1994 passed a Single Bench of the High Court Division in Civil Revision No. 184 of 1987 (Dhaka)/ Civil Revision No. 459 of 1988 (Rangpur) making the Rule absolute upon setting aside the judgment and decree dated 25.11.1986 passed by the learned Additional District Judge, Rajshahi in Title Appeal No. 80 of 1982 dismissing the appeal and affirming the judgment and
decree dated 14.4.1981 passed by the learned Munsif, Sadar, Rajshahi in Other Class Suit No. 360 of 1973 dismissing the suit on contest.

2. Plaintiff-respondent Nos. 1 and 2 instituted Other Class Suit No. 360 of 1973 in the Court of Munsif, Sadar, Rajshahi for declaration of their title to the suit property stating, inter alia, that one Tarini surrendered his korfa pattan in respect of the suit land of C.S. khatian No. 21 to his landlord Paramananda Mondol, who while in possession died leaving behind two sons, Gonesh Chandra and Dasabir Chandra, leaving Khagendra and Daman as two sons Dasabir Chandra also died. Thereafter, Gonesh Chandra, Khangendra and Daman sold half of the suit Plot, comprising an area of 1.83 acres to plaintiffs by a registered kabala dated 25.4.1969. On the same day one Erfan Ali also purchased by another kabala the rest half of the suit plot from the said vendors of the plaintiffs. By amicable arrangement the plaintiffs got possession in the western half of the said plot and said Erfan Ali got the eastern half. In the preliminary S.A. record the suit land was recorded in the name of the heirs of Paramananda Mondal and then it was wrongly recorded in the name of one Rajendra Nath Shil. The plaintiffs sought for correction of the record, but the defendant appellants raised objection disclosing that defendant No.3 had purchased the suit plot from said Rajendra Nath Shil by a registered sale deed dated 07.07.1969 and that said Erfan Ali by executing a nadabi deed dated 21.06.1971 relinquished his claim over the suit plot and that on 13.10.1972 defendant No.3 also sold .98 acres of land from the suit plot to defendant Nos. 1 and 2. 3. Defendant Nos. 1 and 2 by filing a joint written statement denied right, title, interest and possession of the plaintiffs in the suit land. Their case, in short, is that Parmananda Mondal by a registered kabala dated 30.04.1926 sold the suit plot to Rajendra Nath Shi] and left the country for good. Accordingly, the name of Rajendra Nath Shil was correctly recorded in S.A. khatian and he also paid rent to the Government. There was a Certificate Case No. 2602/57-58 in respect of the suit khatian and said Rajendra Nath Shil paid the certificate dues and he by a registered kabala dated 07.07.1969 sold the said land to defendant No.3, who by a kabala dated 13.10.1972 sold .98 acres of land to defendant Nos.l and 2. Defendant Nos. 1-3 have been possessing the suit plot.

4. The trial Court dismissed the suit holding, inter alia, that it was barred by limitation being filed beyond 4 years from the date of knowledge of the wrong entry in the S.A. khtian and that the plaintiffs could not prove their right, title, interest and possession in the suit land and that the contesting defendants also could not prove the title of their vendor Rajendra Shil in the said land. The lower appellate Court dismissed Titile Appeal No.80 of 1982, preferred by the plaintiff-respondents and affirmed the decree of the trial Court. Whereupon the plaintiff-respondents in revision obtained a rule in Civil Revision No. 184 of 1987 (Dhaka) /Civil Revision No.459 of 1996 (Rangpur). The learned Single Judge of the High Court Division by the impugned judgment and order dated 28.06.1994 made the Rule absolute and after setting aside the judgment and decree of the lower appellate Court decreed the suit holding, inter alia, that the lower appellate Court had wrongly affirmed the trials Court’s decree of dismissal of the suit overlooking the broad facts that the defendants had failed to prove the title of Rajendra Shil in the suit plot and that the Courts below wrongly disbelieved plaintiffs’ possession therein. The learned Judge upon reassessment of the oral evidence of witnesses held both title and possession of the plaintiffs in the suit land and further held that the plaintiffs’ suit being suit for declaration of title to the suit land upon asserting their possession, courts below wrongly held that the suit was barred by limitation.

5. The defendants being aggrieved by the impugned judgment of the High Court Division filed civil petition for leave to appeal and obtained leave.

6. Mr. Nurul Islam Bhuiyan, the learned Advocate-on-Record, appearing for the appellant, placed before us the judgments of the Courts below as well as the impugned judgment of the High Court Division and other materials on record and thereafter contended that the High Court Division exceeded its revisional jurisdiction in interfering with the concurrent finding of facts regarding the plaintiffs’ title to, and possession in, the suit land upon reassessment of evidence without reversing the material findings and without giving any finding as to how the lower appellate Court committed an error of law within the meaning of Section 115(1) of the Code of Civil Procedure. Learned Advocate-on-Record further argued that the Courts below upon consideration of averments made in the plaint and the cause of action for the suit and the evidence lead by the plaintiffs in support of the plaint case rightly held that the suit was barred by limitation and the learned Single Judge of the High Court Division without considering the pleadings and evidence on record wrongly reversed such findings in holding that the suit is not barred by limitation.

7. Mr. Md. Nawab Ali, the learned Advocate-on-Record appearing for the respondent No.l, did not file any concise statement. However, in support of the impugned judgment of the High Court Division, he contended that the High Court Division in the exercise of its power under Section 115 of the Code of Civil Procedure, considered the materials on record, decreed the suit holding that the lower appellate Court had wrongly affirmed the trial Court’s decree of dismissal of the suit over looking the broad facts that the defendants had failed to prove the title of Rajendra Nath Shil in the suit plot and as such the Courts below wrongly disbelieved the plaintiffs’ possession therein and as such the learned Single Judge of the High Court Division upon assessment of oral evidence of the witnesses found both title and possession of the plaintiffs in the suit land and further held that the plaintiffs’ suit being a suit for declaration of title to the suit land upon ascertaining possession the courts below wrongly held that the suit was barred by limitation.

8. We have heard the learned lawyers of both sides and considered their submission. On perusal of the impugned judgment of the High Court Division, we find that the learned Single Judge of the High Court Division has meticulously examined the materials on record and considered both oral and documentary evidence in their proper perspective. Having regard to the facts and circumstances of the case, we are fully in agreement with the findings and decisions of the High Court Division and we hold that the High Court Division committed no illegality in reversing the judgment of the lower appellate Court and the High Court Division reversed the findings of the courts below with cogent ground and on legal basis and we do not like to take a different view of the findings’of the learned Single Judge of the High Court Division. As a result, we find no substance in the appeal. Accordingly, the appeal is dismissed without any order as to costs.

Ed.

Source : III ADC (2006), 186.

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