Appellate Division Cases
(Civil)
PARTIES
Sree Sukhendu Nath Sahah and others………………………………………………….Appellants
Vs
Hamangini Saha being dead her heris 1 (a) Swapan Judgment Kumar Roy and others……………………………………………………………………….Respondents.
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment
21st March 2006
Seek declaration that the Plaintiffs have Right, Title and Possession in the Land.
Md. Abu Bakkar Mollah Vs. Abdul Majid Moral (2201) 6 MLR (AD) 151. The case of Md. Naimuddin Sarder @ Naimuddin Sarder Vs. Md. Abdul Kalam Biswas 39 DLR (AD) 237. The learned Advocate-on-record also submitted that as the defendant No.l was in possession of the land on the basis of the unregistered deed of gift which though invalid but on the basis thereof the defendant No. 1 having had possessed the land upon ascertaining her right for more than 12 years and as such acquired good title in the land in suit (9)
ADVOCATES
Bivash Chandra Biswas, Advocate-onrecord For the Appellants.Nurul Amin, Advocate instructed by A.K. M. Shahidul Huq, Advocate-on-Record For Respondent No. l(a) Not represented Respondent Nos. 2-4
JUDGMENT
Md. Ruhul Amin J :- This is plaintiff’s appeal by leave against the judgment dated December 8, 1997 of a Single Bench of the High Court Division in Civil Revision No. 2419 of 1990 making the Rule absolute upon reversing the judgment and decree dated March 15, 1990 of the Court of Additional District Judge, Kushtia in Title Appeal No. 147 of 1986 affirming the judgment and decree dated June 5, 1986 of the 1st Court of Munsif (now Assistant Judge) Kushtia in title suit No. 48 of 1985 decreeing the same. The suit was filed seeking declaration of title and confirmation of possession in respect of the land described in the schedule attached to the plaint.
2. Facts averring which the suit was filed in short, are that the land in suit belonged to Jataindra Nath Shaha who had 4 sons Mohendra Saha, Nalini Ranjan Saha, Santosh Kumar Saha and Phani Bhushan Saha, that Mahendra Nath Saha died before his father leaving wife, Hemangini Saha (defendant No. 1) and a daughter by name Sundari Dasi. Jatindra’s properties including the land in suit were inherited by his 3 sons, that during S .A. operation the land in suit was recorded in name of said 3 sons and therein wrongly name of defendant No.l was recorded with the remark life interest, that defendant No.l had neither inherited the property of Jatinadru nor got any property from Jatindra by deed of gift, that the claim of the defendant No.J of having the land in suit by deed of gift is false and the deed of gift, it any, is forged, that plaintiffs as heirs of the 3 sons of Jatindra
are in possession of the land in suit and enjoying the same, that the defendant NO. 1 is living with the plaintiffs, that the plaintiffs are providing her maintenance, that defendant No.l has sold some properties to defendant nos. 2-12 on January 16, 1985 that the said act of the defendant No.l has clouded title of the plaintiffs and that on the basis of the deed executed by defendant No.l in favour of the defendant Nos. 2-12 the said defendants having had claimed title, plaintiffs are constrained to file the suit.
3.The suit was contested by the defendant Nos. 1, 11 and 12 by filing joint written statement denying the material averments made in the plaint and stating inter alia, that Jatinadra was the father in law of defendant No.l and she got IIV2 bighas of land from her father in law on the basis of unregistered deed of gift dated 25th Sraban, 1342 B. S. That defendant No. 1 upon accepting the gift has been possessing the land in suit through bargadars, that defendant No. 1 paid rent to the Government and obtained dakhilas, that during S. A. operation her name was correctly recorded, that at the time of S. A operation Nalini, father of the plaintiff Nos. 1 and 2 took away the unregistered deed of gift from her and did not return the same, that defendant No.l has sold some land to the defendant Nos. 2-12 who are possessing the said land and the rest is being possessed by the defendant No. 1 through bargadars, that during R.S. operation the land which she got by the unregistered deed of gift was recorded in her name and the said revenue record was quite correct, that the defendant No.l lives in separate mess.
4. The trial Court on consideration of the evidence of the parties, both oral and documentary, arrived at the findings that the plaintiffs have filed C. S and S. A khatians and Government Dakhilas showing payment of rent upto 1389-90 B. S. that the plaintiffs are possessing the land in suit, that the defendant No. 1 did not inherit any land from her father-in-law Jatindra and that she has no life interest in the property left by Jatindra nor she claimed life interest in the property left by Jatindra that the unregistered deed of gift as claimed by the defendant No.l is void in the eye of law, that although defendant No. 1 has stated that Nalini took away unregistered deed of gift from her and did not return the same but she did not take any step for recovery of deed of gift from Nalini, that from the papers relating to the revenue proceeding it is seen that the unregistered deed of gift was not produced before the said authority at any point of time, that although she claimed that plaintiffs admitted before the revenue authority about the existence of unregistered deed of gift, but no witness was examined to prove that the contents of the unregistered deed of gift was read by the witness or any body or that anybody had seen the unregistered deed of gift, that as the unregistered deed of gift was not produced before the court and no witness was examined who had read the contents of the same consequently the terms and condition of the alleged unregistered deed of gift remains unknown or in other words everybody in the suit as well as the court are in dark about the terms and conditions of the
unregistered deed of gift, that form the papers of the revenue office it is seen that the plaintiffs at the time of S. A. operation admitted life interest of the defendant No. 1 in the land transferred by Jatinadra by the un-registered deed of gift and the defendant No.l was in permissive possession of the suit land, that although defendant No. 1 tried to prove her possession in the land in suit and in that context tried to make out a case of acquisition of title by adverse possession and tried to establish that case through the evidence of D. W. 2 but the said witness had admitted that he was the bargadar of the plaintiffs and from the papers on record, particularly a ‘Salishnama’, it is seen that D. W . 2 admitted that he was bargadar of the plaintiffs, that although the defendants filed some private dakhilas and a few Government dakhilas but it is seen from the papers of the revenue Authority, particularly from the paper of appeal case NO. 26102 of 1984, that not a single dakhila was produced before the Settlement Appellate Authority, that some private rent receipt i. e. Ext. “A” series are not related to the suit land and that it is seen that the said private rent receipts are of recent origin, that the Settlement Appellate Authority while held local inquiry found the plaintiff in possession of the land in suit and the defendant No. 1 did not take any step as against the plaintiff’s possession of the land in suit, that D. W. 2 admitted that he cultivated some portion of the suit land as bargadar of the plaintiffs, that the witnesses examined by the defendants are inter see related and that their evidence cannot be considered reliable and that they failed to prove possession of the defendant No. 1 that the private documents filed by the defendant have not been proved by examining competent witness, that defendant No. 1 failed to prove her right, tile and possession in the land in suit, that the suit ,is maintainable and also not barred by limitation and that the plaintiffs have title in the land in suit. On the aforesaid finding the trial Court decreed the suit.
5. The contesting defendants went on appeal. The appellate Court on consideration of the materials on record held that the admitted position is that in the S. A. and R. S Khatina along with the names of the plaintiffs name of the defendant No.l has also been recorded, that the unregistered deed of gift, has not been filed from the side of the contesting defendants, that although the defendant No.l stated that the unregistered deed of gift was given to Nalini but the said fact has not been established by examining any witness, that the evidence of defendant No.l who has figured as D. W. 1 is discrepant and that her evidence as regard unregistered deed of gift can not be considered reliable, that Exts-B-B5 have been obtained on the basis of the wrongly prepared S. A. record, that no land was gifted by Jatindra to Hemangini (defendant no. 1 ) nor any possession was made over to the defendant No. 1, that the private rent receipts filed by the contesting defendants marked Exts. A-A (33) are forged and fabricated, that the preparation of the S. A. and R. S record in the name of the defendant No. 1 was wrong, that the plaintiffs by examining disinterested witnesses, particularly P. Ws. 3 and 4, have proved their possession in the land in suit, that D. W. 2 who is a bargadar of the plaintiffs has also proved possession of the plaintiffs in the land in suit, that from the contents of the ‘Salishnama’ correctness whereof has been admitted by D. W. 2 it is seen that the plaintiffs are in possession of the land in suit. On detailed consideration of the evidence of the P.Ws. and D. Ws. the appellate court arrived at the finding that the plaintiffs, have right, title, interest and possession in the land in suit, that the private rent receipts marked Ext. A-A (33) are not genuine and that the same have been created for the purpose of the suit, that the plaintiffs have filed government rent receipts Exts.l-lU, that there was no basis for recording the name of the defendant No. 1 in the S .A and R. S. khatian in respect of the land in suit, that the plaintiffs are in possession of the land and tht the defendant no. 1 failed to prove her claim of title on the basis of the adverse possession and that as defendant No.l has no title in the land in suit, the defendant Nos. 2-12 by purchase from defendant No. 1 have not acquired any title in the land in suit, that the suit filed by the plaintiffs is not barred by limitation since they have not prayed for any relief against the S. A and R. S record but they have prayed for declaration of title, that as by the unregistered deed of gift defendant No. 1 did not acquire any title in the land in suit and as such transfer of the land by her in favour of the defendant Nos. 2-12 were void, that the kabalas obtained by the defendant Nos. 2-12 were fraudulent. On the aforesaid finding the appellate court dismissed the appeal.
6. The contesting defendants moved the High Court Division in revisional jurisdiction. The High Court Division upon referring to the paper of the revenue office, particularly Exts. E. El and E2. Observed that the predecessor of the plaintiffs during S. A survey operation admitted existences of the unregistered deed of gift and that the settlement personnel on examining the witnesses found possession of the defendantNo.l in the land in suit “for more than statutory period of 12 years since 1342 B. S on the basis of the said deed of gift and accordingly recorded her name in the S. A khatian and this was also done during R .S operation”. It may be mentioned the appellate Court on consideration of the papers of the revenue office arrived at the finding that the revenue official found plaintiffs in possession of the land claimed by them for the last % years and in the background of the said fact the appellate court observed that the defendants did not taken any step as against her dispossession, if any was. The High Court Division was of the view that the appellate court while disposing of the appeal did not consider the exhibit E series i. e papers of the revenue proceeding. The view so expressed is not correct in that the appellate Court considered the said papers and noticed that the predecessor of the plaintiffs admitted life interest of the defendant No.l in some part of the land of Jatindra and that the revenue authority also found the plaintiffs in possession of the land. The High Court Division observed that the courts below including the appellate Court disbelieved the case of the defendants “without considering important evidence with regard to possession video Ext. E. series.” The view so expressed is not correct since the appellate court considered the Ext. E series and found possession of the plaintiffs. The High Court Division while making the Rule absolute observed that the appellate Court did not come to any finding with regard to possession and did not discuss any evidence on the question of possession, that the trial Court as well as the appellate court found title of the plaintiff without considering the “substantive and important evidence” supporting adverse possession of the defendant No.l in the light of the Ext. E series, that the finding of the trial Court and the appellate court as regard title and possession of the plaintiffs in respect of the land in suit “is an outcome of non-consideration of vital and substantive evidence vide Ext. E series and it was also due to misreading of oral evidence on record, namely the oral testimony of the P.Ws with regard to possession.” The High Court Division has observed “From the oral testimony given by the P. Ws. It appears that the plaintiffs have been able, if at all, to prove their possession of the suit land from the last 20 years from the date of taking evidence in May 1986. There is no evidence led by the plaintiffs that they were in possession of the suit land after the execution of the said unregistered deed of gift in order to show that defendant No.l did not posses that suit land for more than 12 years from the date of the deed of gift.” On the aforesaid findings and observations the High Court Division made the Rule absolute.
7. Leave was granted to consider the contentions that the findings of fact by the trial Court as well as by the appellate Court that the plaintiffs were all along in possession of the property left by Jatindra Nath Saha, the High Court Division was in error placing reliance on Ext. E series in holding that defendant o. 1 acquired title by adverse possession in the land in suit, that the High Court Division without discussing the contents of the Ext. E series (papers of the proceeding of the revenue office relating to the
matter of possession of the parties was in error in ever sing the concurrent finding of fact particularly of possession of the plaintiffs arrived upon due consideration of the evidence both oral and documentary, that the defendant No. 1 made claim in respect of the land in suit on the basis of the unregistered deed of gift but the same was not filed before the court nor the contents thereof were proved by any competent witness although said deed of gift has bearing on the question of possession, that in the absence of the alleged deed of gift, High Court Division was in error in arriving at the finding acquiring title by the defendant No. 1 by adverse possession.
8. The learned Advocate-on-record for the appellants has submitted that the trial Court as well as the appellate Court on detailed discussions of the evidence found possession of the suit land in favour of the plaintiffs but the High Court Division in sweeping manner without referring in what respect the evidence considered by the initial as well as by the last court of fact while arriving at the finding about the possession of the plaintiffs misread or did not consider the evidence observed that the court of fact found title and possession of the plaintiffs on ‘non consideration of vital and substantive evidence vide Ext. E series and it was also due to misreading of oral evidence on record, namely the oral testimony of the P.Ws. with regard to possession”. He also submits that High Court Division totally overlooking the finding made by the trial court and the appellate court on consideration of Ext. E series that the survey official found plaintiffs in possession has observed that the courts blow did not consider the said Ext. E series. The learned Advocate for the Respondent upon referring to the averments made in the plaint as regard cause of action submitted that without praying from consequential relief the suit was not maintainable. It may by mentioned High Court Division has not set aside the judgment of
the Court of appeal on the aforesaid ground. In paragraph 12 of the plaint as to the cause of action for the filing of the suit it was averred In the background of the aforesaid averments it has been submitted by the learned Advocate for the Respondent No.l (a) that
as the possession has been threatened the plaintiffs were required to ask for consequential
relief by way of seeking confirmation of possession. The submission so made is too much technical in the background of the materials on record. The Courts of fact on consideration of the evidence concurrently held that the plaintiffs are in possession of the land in suit. The High Court Division thought set aside the judgment of the last court of fact but as regard possession has observed “From the oral testimony given by the P.Ws. it appears that the plaintiffs have been able, if at all, to prove their possession of the suit land from the last 20 years from the date of taking evidence in May, 1986. There is no evidence led by the suit land after the execution of the said unregistered deed of gift in order to show that defendant No. 1 did not possess the suit land for more than 12 years from the date of the deed of gift. It may be mentioned the defendant Nos. 2-12 purchased some property from the defendant No. 1 and that was the starting point of dispute about the title and possession of the plaintiffs and in that background they were compelled to file the suit to seek declaration that the plaintiffs have right, title and possession in the land in suit and the defendant No.l has no right, title and possession therein. In the background of the said state of the matter the suit having been filed we are of the view the suit so filed was quite maintainable. It has also been submitted by the learned Advocate for the Respondent that the plaintiffs failed to prove their possession and as such the High Court Division was not in error in setting aside the judgment upon holding tat the appellate Court and the trial court made the judgment without considering the vital and substantial evidence and also upon mis reading the oral evidence of the P. Ws. The learned Advocate-on-record also submitted that as the defendant No.l was in possession of the land on the basis of the unregistered deed of gift which though invali but on the basis thereof the defendant No. 1 having had possessed the land upon ascertaining her right for more than 12 years and as such acquired good title in the land in suit. In support of the aforesaid submission the learned Advocate has referred to the case of Mir Laik Ali Vs. Standard Vacuum Oil Company (ESSO) and Abdur Razzak reported in 16 DLR (SC) 287. There is no reason to take different view as regard the principle of law enunciated in the aforesaid case. But in the instant case it has been held on consideration of evidence of
the parties by the last Court of fact thaton the basis of the invalid document defendant No. 1 did not possess the land claiming her title nor possessed the land as of her. The courts of fact on consideration of the evidence on record held that the plaintiffs are in possession of the land. It is seen from the judgment of the appellate court that the witnesses examined by the plaintiffs are independent and disinterested witnesses and they are neighburs to the suit land and they had deposed about possession of the plaintiffs and as against that the witnesses examined by the defendant No. 1 were not independent and disinterested witness. It may be mentioned one of the D. Ws. i. e. the D. W 2 although deposed that as ‘Bargadar’ of the defendant no.l he possessed the land in suit but on earlier occasion while he was cultivating the land as ‘Bargadar’ of the plaintiffs there were certain dispute between the D. W. 2 and the plaintiffs and thereupon there was a ‘Salish’ and written award was given in the ‘salish’ wherein . admissions of the D.W.2 of being ‘bargadar’ of the plaintiffs was recorded. In cross-examination when the attention of the witness was drawn to the contents of the award he admitted the correctness thereof. At no point of time i. e. either before the settlement official or in the court the alleged unwritten deed of gift was produced. The defendant No. 1 tried to prove the existence of unwritten deed of gift through the evi.J dence of D. W. 6. The Court of fact upon assigning reason disbelieves the said witness. In that view of the matter the contention of the learned advocate for the Respondent that the defendant Respondent acquired adverse title in the land in suit is of no merit. The learned Advocate has also contended that because of weakness in the case of defendant, plaintiff cannot have a decree in his favour and in support of the aforesaid contention referred to the case of Md. Abu Bakkar Mollah and others Vs. •* Abdul Majid Moral, and others reported in (2201) 6 MLR (AD) 151 and the case of Md. Naimuddin Sarder @ Naimuddin Sarder Vs. Md. Abdul Kalam Biswas and another reported in 39 DLR (AD) 237. In . the background of the facts of the case the principle laid down in the aforesaid cases has no manner of application since plaintiffs by oral as well as documentary evidence established their case.
9. It appears from the judgment of the High Court Division that the said Division set aside the judgment of the appellate Court solely on the ground that the appellate Court as well as the trial Court while decreeing the suit amved at the finding that I the plaintiffs have title and possession in the land in suit did not consider the paper Ext. E series i. e. papers of the revenue proceeding. The appellate court i.e. the last courto\’ fact on detailed discussions of the oral evidence and also on consideration of the defendants paper Ext. E series arrived at the finding “that the settlement authority after local enquiry found that these plaintiffs have been possessing the suit lad during the last % years. It is not the case of the defendant No.l that she took any step against her said dispossession from the suit land”. The defendant No. 1 in support of her case that on the basis of the unregistered deed of gift she went into possession of the land in suit and while enjoying the same paid rent in the Serestha of the Zamindar produced Ext. A series. The appellate Court as well as the trial Court on scrutiny of the said Ext. A series concurrently held that those are forged and manufactured papers. The appellate Court has noticed that for the purpose of the suit the contesting defendants obtained some rent receipts (Exts. BB (5) from the Government on the basis of wrongly prepared record by the revenue authority i. e. recording the name of the defendant No. 1 along with the plaintiffs, but the plaintiffs have filed such rent receipts Exts. l-l(U) showing payment of rent in respect of the land in suit except the years for which defendants managed to pay rent through the Exts. B-B5. The High Court Division interfered with the judgment of the appellate Court on the finding that important evidence, as it appears Ext. E series, and also upon the view that the Court of fact made the judgment upon “non consideration of vital and substantive evidence Ext. E series: and that on mis readins of oral evidence Ext. E series ” and that on
mis-reading of oral evidence of the P.Ws. but without referring to in what respect the last Court of fact mis-read the oral evidence or substantive evidence Ext. E series. It has already been mentioned that the appellate Court on consideration of the Ext. E series held that the Settlement authority found possession in respect of the land in suit in favour of the plaintiffs. The High Court Division itself has found that the plaintiffs were able to prove their possession for the last 20 years from 1986 (year in which oral evidence of the P.Ws. and the D.Ws. was recorded by the trial Court). The High Court Division having had found so there was no reason for interfering with the judgment of the appellate court on the view that plaintiffs did not led any evidence for the purpose of establishing the fact that defendant No. 1 after execution unregistered deed of gift did not possess the land in suit for more than 12 years from the date of deed of gift. For argument’s sake even if it is accepted though not established by the defendant No. 1 that the said defendant from the date of gift was in possession of the land in suit for more than 12 years and thereby she acquired title on the basis of the invalid document but in the background of the finding oi’ the High court Division that plaintiffs were able to establish their possession “for the last 20 years from the date of taking evidence in May, 1986” and that being the state of the matter then even if defendant No.l had any title, in fact she had no title in the land in suit, she lost alleged title in the land in suit for not being in possession thereof for the 20 year. On consideration of the materials on record we are of the view that the Court of fact was correct in decreeing the suit on the finding that plaintiffs have right, title and possession in the land suit and the High Court Division J was in serious error in interfering with the said judgment upon making sweeping observation that the Court of fact decreed the suit without consideration the substantive evidence and mis-reading the oral evidence without referring which particular evidence was mis read or left out of consideration by the court of fact i. e. lower appellate Court or which particular evidence was not considered by the lower appellate court \ .As stated hereinbefore that the High Court Division was of the view Est. E series was not considered by the court of appeal but on perusal of the judgment of the appellate Court it is seen that the said court considered the Ext.E series i. e. the paper relating to the proceeding before the revenue officias and thereupon arrived at the finding that the revenue personnel found possession of the plaintiffs in the land in suit. In view of the discussions made hereinabove we find merit in the appeal. Accordingly the appeal is allowed without any order as to costs.
Sourcr: III ADC (2006) 465