Appellate Division Cases
(Civil)
PARTIES
Sheikh Ali Ambia………………Appellant
-VS-
Rahima Khatun and others ……….Respondents
JUSTICE
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 18th March 2007
The Code of Civil Procedure, Section 115(1)
For getting full relief the plaintiff should be at liberty to file a fresh suit with advalorem court fee, if considered necessary for cancellation of disputed deed dated 20.01.1958 (Exhibit-Kha) within six months, inasmuch as, without cancellation of the said deed the title of the plaintiff to the suit land could not be declared unless it was found that she had acquired a separate and distinct title by way of adverse possession ………………….(7)
Civil Appeal No. 276 of 2002 (From the judgment and order dated 21.05.2001 passed by the High Court Division in Civil Revision No. 1577 of 1994.)
Md. Nawab Ali, Advocate-on-Record ………………For the Appellant
A.S.M. Khalequzzaman, Advocate-on-Record…………..For Respondent No.2
Respondent Nos. 1, 3-13 ………………………. Not represented.
JUDGMENT
1. Amirul Kabir Chowdhury J: This appeal on leave is at the instance of the defendant challenging legality of the judgment dated 21.05.2001 making the rule absolute in Civil
Revision No. 1577 of 1994.
2. The plaintiffs filed Title Suit No. 166 of 1985 in the Court of Assistant Judge,
Paikgacha, Khulna for declaration to the effect that the kabala of defendant No.l is not
binding on them contending, inter-alia, that 2.92 acres of land including the suit land
measuring 1.46 acres from the western side of the suit plot No. 69 of C.S. Khatina No. 193 corresponding to S.A. Khatian Nos. 196 and 197 of Mouza Nasirpur belonged to Kazem Sardar and Alek Mollah in equal shares; that Alek Mollah left behind only heir, daughter Nurjahan, who used to live in her father’s homestead in the suit land with her husband and son till death; that she died leaving behind husband Mofizuddin Sarder and only son Ajiuddin, who was minor at the time of settlement operation and acquired title by adverse possession by long, open and continuous possession with predecessor of plaintiff No.l and that daughter plaintiff No.2 was married at the age of 4/5 years to the plaintiffs son; neighbour Abbas Ali Sheikh was entrusted “with the responsidility of possession and looking after the suit land along with other lands, on behalf of the plaintiff; that the said Abbas Ali Sheikh, father-in-law of appellant No.2 claimed title in the suit land 2/3 years ago before institution of the siiit and asked the plaintiffs to give up possession thereof in his favour; that after some times defendant No.l held out threats to dispossess the plaintiffs from the suit land in the last part of Kartick, 1352 B.S. giving rise to the cause of action for the suit; that the petitioners became suspicious about the conduct of defendant No.l; and Abbas Ali Sheikh conducted search and came to know for the first time that the name of defendant No.l was recorded in S.A. Khatian No. 196 along with other co-sharers of the plaintiffs, that the plaintiffs further came to know that a kabala deed dated 20.01.1958 corresponding to 06.10.1963 B.S. was created in the name of defendant No. 1 as the vendee of the suit land by minor Ajiuddin Sardar making untrue and incorrect statements therein; that Abbas AH Sheikh was the identifier of the vendor but the kabala was not signed or executed by the vendor or by anybody on his behalf; that the kabala is a forged and collusive document which was never acted upon and defendant No.l never claimed any title or possession in the suit land on the strength of the said kabala and never paid any rent and that the cause of action for the suit arose on the threat of defendant No. 1 to dispossess the plaintiffs from the suit land in the last part of Kartic, 1392 B.S.
3. The appellant as defendant No.9 filed a written statement denying the material allegations of the plaint stating, inter-alia, that Alek Molla left behind widow Baru Bibi and daughter Noorjahan, and that Noorjahan died leaving behind mother Baru Bibi, husband Mofizuddin and son Ajiuddin; that Mofizuddin sold away his own interest and
the interest of his minor son, Ajiuddin by a deed of kabala dated 20.10.1958 in favour of
defendant No.l, Abed Ali Moral, that defendant No. 1 Abed Ali Moral possessed the suit
land, got recorded his name in S.A. Khatian, paid rent and that Ajiuddin did not file the suit within 3 (three) years from the date of attaining majority; having acquired possession as well defendant No.l sold out the suit land to Abdul Jabbar Sheikh and his brother
Jasimuddin Sheikh, who again transferred .84 acres out of the suit land to defendant No.9
and his two sisters by kabala deeds dated 29.06.1987.
4. The suit was decreed by the trial court whereupon the defendant preferred Title
Appeal No. 35 of 1990 before the learned District Judge who by judgment and order
dated 04.01.1994 allowed the appeal, set aside the judgment and decree passed by the trial court and thus dismissed the suit.
5. The plaintiff moved the High Court Division under Section 115(1) of the Code of
Civil Procedure in Civil Revision No. 1577 of 1994 and a learned Single Judge of the High Court Division by the impugned judgment and order made the rule absolute setting aside the judgment of the lower appellate court and decreed the suit.
6. Hence is this appeal.
7. Leave was granted to consider the submissions on behalf of the appellants that the High Court Division committed error in arriving at a finding to the effect that for getting full relief the plaintiff should be at liberty to file a fresh suit with advalorem court fee, if considered necessary for cancellation of disputed deed dated 20.01.1958 (Exhibit-Kha) within six months, inasmuch as, without cancellation of the said deed the title of the plaintiff to the suit land could not be declared unless it was found that she had acquired a separate and distinct title by way of adverse possession.
8. Mr. Md. Nawab Ali, learned Advocate-on-Record while supporting the appeal reiterates the submissions made earlier and submits, inter-alia, that the learned Single Judge of the High Court Division did not at all advert to nor considered this aspect of the case and the impugned judgment is liable to be set aside.
9. It appears that the plaintiff respondents claimed title in the suit property as heirs of the
original owners and getting scent of a kabala dated 20.01.1958 purported to have been executed by Aziuddin in favour of Abed Ali, defendant No.l (respondent No.l), the plaintiff filed the suit.
10. In support of the case of the plaintiff three witnesses were examined including the plaintiff No.l. To controvert the case of the plaintiff three witnesses were produced on behalf of the defendant appellant, including Sheikh Ali Ambia, defendant No.9 who disclosed 01.12.1956 to be his date of birth and as such he cannot be regarded as a competent witness to prove the deed dated 20.01.1958. Similarly D.W.2 admitted to live in the house of D.W.I. D.W.3 failed to prove alleged possession of the defendant. The basic document of the defendant i.e. the deed dated 20.01.1958 being not proved the trial court on consideration of evidence of the plaintiff decreed the suit.
11. The lower appellate Court without considering the materials on record and without
adverting to the findings of the trial Court appears to have reversed the judgment of the
trial Court. The High Court Division on the basis of materials came to a correct decision
and so reversed the judgment and decree passed by the lower appellate court.
12. In such view of the matter the submissions made by the learned Advocate-on-Record on behalf of the appellant do not inspire us to lay our hands. The appeal, therefore, appears to have no merits. Hence the appeal is dismissed without any order as to costs.
Ed.
Source: IV ADC (2007), 377