Appellate Division Cases
(Civil)
PARTIES
Sree Dulal Chandra Das and others ……………………Appellants
(In both the cases)
-vs-
Sree Ratan Chandra Sarker and others ……………….Respondents
(In both the cases)
JUSTICE
K.M Hasan C J
Mohammd Fazlul Karim J
Md. Hamidul Haque J
Md. Tafazzul Islam J
JUDGEMENT DATE 3rd November, 2003
The Specific Relief Act (I of 1877), Section 42.
Mahaprabhu Ram-vs- Gopal Ram Ram 42 DLR(AD) 158. Abdul Kader and others-Vs-A.
K. Noor Mohammd 36 DLR(AD) 261. Lai Meah and others Vs- Maji Md. Ibrahim Meah 28 DLR (AD) 61.
The High Court Division… made out a third case and decreed the suits. The High Court Division held that the plaintiiT acquired title by adverse possession. This finding of the High Court division is without any basis. Moreover, this relief given by the High Court Division appears to be a gratuitous relief because the plaintiff himself did not claim title by adverse possession…………………. (11)
Civil Appeal Nos. 18 & 19 of 1999 (From the Judgment and Order dated 5.5.1998 passed by the High Court Division in civil Revision Nos. 560 & 149 of 1996)
Md. Fazhd Karim, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record………For the Appellants (In both the cases)
Farooq Ahmed, Advocate, instructed by N.I. Bhuiyan, Advocate-on-Record………….. For the Respondent No/1 (In both the cases)
Md. AftabHossain, Advocate-on-Record……For Respondent Nos. 9-12 (In both the cases)
Dispensed with……………. Respondent Nos. 2-5 & 17-20(In both the cases)
Fx-parte …………..Respondent Nos. 6-8&13-16 (In both the cases)
JUDGMENT
1. Md. Hamidul Haque J :- Both the appeals have been preferred after obtaining leave against the judgment and order passed by a single judge of the High Court Division in civil Revision Nos. 149 and 560, both of 1996.
2. The present appellants are defendants in Title Suit No. 123 of 1990 and Title Suit No. 14 of 1991. The present respondent Sree Ratan Chandra Sarker filed both the Suits, Title Suit No. 14 of 1991 for partition and Title suit No. 123 of 1990 for a declaration of title and for a declaration that the suit property was not an enemy property. The trial court first decided title suit No. 123 of 1990 and that suit was dismissed then the Title Suit No. 14 of 1991 was decided and that suit was dismissed mainly on the ground that plaintiff could not establish his title in title suit No. 123 of 1990 and also on the ground that the suit land was included in the hotch pot in a partition suit bearing NO. 204 of 1966 and as such the second partition suit was barred by resjudicate. The plaintiff preferred two appeals against the judgment and decree passed in the above two suits. The appeals were also dismissed and then the plaintiff filed the above two civil revisions and the learned single judge by the impugned judgment and order decided both the civil revisions and made the rules absolute. The High Court Division decreed the suits.
3. Mr. Md. Fazlul Karim, the learned counsel appeared on behalf of the appellants in both the appeals. After taking us through the judgment and order of the High Court Division he has submitted that the High Court Division committed an error in decreeing the suits only taking into consideration the long possession of the plaintiff and holding that, the plaintiff acquired title by adverse possession. He has pointed out that the plaintiff himself did not claim that the acquired any title by adverse possession.
4. Thereafter, he has taken us through the judgment of the courts below and he has submitted that Title Suit No. 123 of 1990 was dismissed on the ground of limitation and other grounds and that Title Suit No. 14 of 1991 was dismissed on the ground that the same was hit by priniciple of resjudicate. Next Mr. Md. Fazlul Karim has agroued that the High Court Division in its judgment did not give any findings regarding limitation or resjudcate. So according to him the judgment and order passed by the High Court Division in the above two civil revisions decreeing both the suits cannot be sustained.
6. Mr. Farooq Ahmed, the learned Advocate who appeared on behalf of the plaintiff respondent has submitted that the plaintiff was continuously in possession of the suit land and as such the High Court Division committed no illegality by declaring title in favour of the plaintiff. However, he has conceded that the High Court Division did not give any findings as to whether Title Suit Nos. 123 of 1990 and 14 of 1991 were respectively barred by limitation and principle of resjudicate. So he made a submission for sending back the matters to the High Court Division on remand for giving findings all the those points.
7. On perusal of the impugned judgment and order of the High Court Division we find that actually the court gave much emphasis on the long possession of the plaintiff. The plaintiff claimed that suit property measuring 43 decimals appertaining to C.S. Khataina No. 476 originally belonged to Madhab Chandra Who sold it to Baikuntha Charabarti, Baikuntha died leaving behined three sons Rajendra, Jatindra and Hem Chandra. On an amicable partition Hem Chandra Got 16¾ decimals of land and sold the same to Lalit Mohan Pal and Lai Mohan Pal by registered patta transferred 08 3/8 decimals to his wife Pramila Bala Paul. Preamila Bala Paul gifted that land to her nephew Upendra Kumar Pal. Upendra entered into an agreement dated 16.8.1968 to sell 02 decimals of land to the plaintiff and also delivered possession to the plaintiff. The plaintiff claimed that after erecting tin huts in that land he was been living from that time. The plaintiff also claimed that though the suit land was under his possession since 16.8.1968 it was wrongly entered into list of enemy property. The contesting defendants appeared by filling written statement and their case is that previously partition suit No. 204 of 1966 was filed in respect of the present suit land and other properties and that suit was decreed and the decree was made final. The defendants further claimed that Upendra filed Title Suit No. 52 of 1978 for declaration of his title in the suit land but that suit was dismissed. The defendants also claimed that Title suit No. 123 of 1990 was barred by limitation as the plaintiff was aware in 1978 of the fact that the suit property was enemy property.
8. The trial Court and the appellate court found that the Title Suit No. 123 of 1990 was barred by limitation. The trial court by referring to the statement of the plaintiff who deposed as P.W. 1 observed that the plaintiff admitted that at his instance Title Suit No. 52 of 1978 was filed by Upendra for declaration of title in the suit land measuring 05 decimals of land including the present suit land. The court further observed that the plaintiff was aware in 1978 that the suit land waslisted as enemy property. Inspite of that he obtained a kabala in respect of the same land in 1985. So, the trial Court has observed that the kabala of the plaintiff is fraudulent and the suit is barred by limitation.
9. Next, we have also noticed from the judgment of the courts below that a partition suit bearing No. 204 of 1966 was filed earlier and in that suit the present suit land was included in the hotch pot and after allotting saham to the plaintiff and the defendants of that suit, 05 decimals remained as residue. The courts further held that as this iand was in hotch pot of the earlier partition suit, second partition suit was barred by resjudicate. The courts also held that as the plaintiff could not prove his title in Title Suit No. 123 of 1990, the plaintiff was not entitled to get a decree for partition in Suit No. 14/91.
10. Now, on perusal of the judgment and order passed by the High Court Division in the Civil Revisions we fined that the High Court Division made out a third case of acquiring title by the plaintiff by adverse possession and made the Rules absolute and decreed both the suits. We do not understand how the learned judge of the High Court Division could make out a third case though the plaintiff himself did not claim any right in the suit land by adverse possession. We have perused the plaint of both the suits but we find that the plaintiff no where claimed that he acquired any title by adverse possession. It further appears that the High Court Division relied upon the decision of this Division as given in the case of Abdul Kader and othersVs A. K. Noor Mohammd as reported in 36 DLR(AD) 261 and also on the decision given in the case of Lai Meah and others Vs- Maji Md. Ibrahim Meah and others reported in 28 DLR (Ad) 61, It is unfortunate that the learned judge failed to understand the principle laid down in those two cases and was totally wrong in applying the principle laid down in those cases in the present case. It may be noted that in the case reported 36 DLR (AD) 261, the plaintiff was in possession under a mistaken or invalid title deed but in the present case, the plaintiff claimed that he purchased the suit land from Upendra, who got it by ways of gift from his wife Pramila Bala Paul in 1945. He also claimed that Upendra entered in to an agreement with him on 10.8.68 for selling the same land and possession was delivered to him on the basis of that agreement and the sale deed was executed on 25.3.1985. The property was listed as enemy property and Upendra Himself filed a suit in 1978 against that listing of the property as enemy property. That suit was dismissed and the judgment passed in that suit is binding on the plaintiff who claimed to have purchased the suit land from Upendra. Moreover, we have found that at the instance of the plaintiff himself Upendra filed that suit. So plaintiff was fully aware that property was enemy property and as such he did not acquired any title on the basis of the sale deed dated 25.3.1985 The Courts below on the above ground found that the plaintiff acquired no title. The courts below also found that title suit No. 123 of 1990 was barred by limitation.
11. The High Court Division did not give any finding on the above questions. The High Court Division, as we have mentioned earlier, made out a third case and decreed the suits. The High Court Division held that the plaintiff acquired title by adverse possession. This finding of the High Court division is without any basis. Moreover, this relief given by the High Court Division appears to be a gratuitous relief because the plaintiff himself did not claim title by adverse possession. In this regard, we may re-produce the observations of this Division made in the case of Mahaprabhu Ram-vs-Gopal Ram Ram and others reported in 42 DLR(AD) 158. The observations are as follows: The appellant never prayed for partition on the basis that he or his predecessor acquired title to the suit property by adverse possession. Title by adverse possession has to be specifically pleaded and proved. The appellants case was one of acquisition of title by settlement. The trial Court found that the case of settlement has not been proved, but it conferred title on the appellant on a gratuitous finding of adverse possession in his favour, unwarranted by pleadings. This gratuitous conferment of title was uncalled for in a suit for partition where the plaintiff’s claim of title is to be looked into incidentally. If the precise title to which he lays his claim is not supported by the evidence on record, the court can not find out another source of title for the plaintiff by was of gratuitous relief.”
12. We have also noticed that the High Court Division did not consider as to whether the long possession of the plaintiff amounts to adverse possession. The learned judge did not come to a finding that the plaintiff asserted his hostile title and possessed the suit land within knowledge of the true owner by denying his title. Moreover, the property was enemy property when he purchased in 1985. The period of possession cannot be twelve years to acquire any right by adverse possession. As the property vested by operation law in the Government in the year 1978, to claim any right by adverse possession, the plaintiff is required to possess the suit land for more than 60 years. Perhaps being aware of this legal position, the plaintiff himself did not claim that the acquired any title by adverse possession. So, we are of the view that the High Court Division was totally wrong in making he Rules absolute and decreeing the suits on consideration of the long possession of the plaintiff. In view of the above legal position both the appeals are allowed without any order as to cost, the judgment and order passed by the High Court Division in civil Revision Nos. 149 and 560 of 1996 are set aside.
Ed
Source: I ADC (2004),582