Sreemati Priti Rani Chakraborty and others Vs. J.M. Sen Institute, through Head Master & Secretary, Ahmed Ullah Faruqui

Appellate Division Cases

(Civil)

PARTIES

Sreemati Priti Rani Chakraborty and others ……………………Appellants

-VS-

J.M. Sen Institute, through Head Master & Secretary, Ahmed Ullah Faruqui …………Respondent

JUSTICE

Md. Ruhul Amin J

Mohammad Fazlul Karim J

Md. Tafazzul Islam J .

JUDGEMENT DATE: 7th February 2006

The Code of Civil Procedure, Sections 10 and 11

The Evidence Act, Section 116

Limitation Act

Seeking eviction of the licensee/ permissive possessor and for khas possession ……(1)

The suit was barred by limitation is not sustainable in law as “in a suit for ejectment

of a licensee, the question to be firstly determined whether the defendant is a

licensee or permissive possessor under the plaintiff, if that is established, the question of limitation will not arise at all because a licensee occupies the property according to the pleasure of the licensor and that occupation does not confer upon the right of exclusive possession as understood in law” ………………….(6)

That one who is mare licensee, license so granted is without any other right is revocable at any time at the will of the licensor and that there is no provision in the

Limitation Act providing limitation for filing a suit within specified time, that in view of the provision of section 116 of the Evidence Act licensee is incompetent to

question the title of the licensor, that the finding of the courts below that the suit was barred by limitation and that plaintiff was not able to prove a “good title is totally misconceived and cannot be maintained”, the licensee is not competent to take a plea of adverse possession, that “the possession of the plaintiff school having been established by various documentary evidence as well as the oral evidence and therefore, under the equitable rule of law, the defendants who were given permission to occupy the suit premises by the original person in possession that is the plaintiff school, cannot say that plaintiff has not title to the subject matter of the contention urged by the learned Advocate of the opposite party does not stand”. On the aforesaid observations and findings the High Court Division made Rule absolute……………………… (8)

The trial Court as well as the appellate Court were quite unmindful of the fact that

in a suit for permanent injunction title of the parties is not adjudicated. The trial

Court as well as the appellate Court was also in error in holding that the suit was

barred under section 11 of the Code of Civil Procedure since the subject matter of the suits …………………………(11)

Civil Appeal No. 80 of 1999 (From the judgment and order dated July 5, 1998 passed by the High Court Division in Civil Revision No. 2298 of 1992)

A.J. Mohammad Ali, Senior Advocate, instructed by Syed Mahbubar Rahman,

Advocate-on-record …………………For the Appellants

Moqbul Ahmed, Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-record.……………For the Respondent.

JUDGMENT

1. Md. Ruhul Amin J : This is defendants’ appeal by leave against the judgment dated

July 5, 1998 of a Single Bench of the High Court Division in Civil Revision No. 2289 of

1992 making the Rule absolute obtained against the judgment and decree dated April

30, 1992 of the Court of Subordinate Judge and 1st Commercial Court, Chittagong in

Other Appeal No. 301 of 1990 affirming the judgment and decree dated March 28, 1990 of the 1st Additional Court of Assistant Judge. Chittagong, Sadar in Other Suit No. 12 of

1990 dismissing the same. The suit was filed seeking eviction of the licensee/ permissive

possessor and for khas possession, of the land described in the schedule attached to the

plaint.

2. The suit was filed stating, inter alia, that the land in suit belonged to Yakub Ali Dobhash and others and they settled the land in suit on nominal rent to the plaintiff, J.M. Sen Institute, about 65 years back (from the date of institution of the suit i.e. 3.12.1987) and since then the school upon constructing house thereon was possessing the land so settled, that Genoda Ranjan Chakraborty, the predecessor of the defendants was a clerk of the school and he was permitted to live in the premises in suit with the members to his family, that predecessor of the defendants having had died leaving the defendant No.l and the minor children defendant Nos. 2-4, and the defendant No.l having had approached the

school authority for allowing them to stay in the premises for some time the school authority permitted the defendants to stay temporarily in the premises in suit, that defendant No.l wife of Genoda Ranjan Chakraborty made commitment to the school authority that on attainment of majority of the defendant Nos. 2-4 she would leave the premises in suit, that on attainment of majority of the defendant Nos. 2-4 the school authority asked the defendants to vacate the premises in suit but instead of vacating the premises in suit the defendant No.l instituted other Suit No. 83 of 1967 seeking a decree for permanent injunction against the school and obtained an order of ad-interim injunction making untrue averments, that the school authority on September 3, 1970 wrote a letter to the defendants asking them to leave the premises in suit and to deliver

vacant possession in favour of the school but instead of vacating the premises in suit the

defendants on different pleas continued their possession in the premises in suit and finally

refused to vacate the premises in suit and hence the suit was filed on 3.12.1983.

3. The suit was contested by the defendants by filing written statement denying the material averments made in the plaint and stating, inter alia, that the suit was barred by limitation and that also hit by the provision of sections 10 and 11 of the Code of Civil Procedure. The specifice case of the defendants was that the land in suit belonged to Abdul Majid Dobhash son. of Yakub Ali Dobhash and that R.S. Khatian stood in his name, that defendant’s predecessor was the house tutor of the children of Abdul Majid Dobhash being satisfied with the service of defendants’ predecessor gifted the land in suit to defendants predecessor, that lateron in 1965 Abdul Majid Dobhash executed a deed of gift in favour of the defendant’s predecessor, that the P.S. record was prepared in the name of the defendants’ that plaintiff has no right, title and interest in the land in suit and as such the suit is liable to be dismissed.

4. The trial Court on consideration of the evidence on record dismissed the suit on the findings that the plaintiff failed to prove when cause of action arose for filing the suit, that the suit was barred by limitation since after the institution of the other Suit No. 83 of 1967 by the defendants the plaintiff has filed the suit in 1989, that the land of the patta and the land in suit is not the same, that it has not been established that land of Ext. 3(ka) patta was the land of Yakub Ali and that on the basis of patta it can not be said that the plaintiff has title in the land in suit, that on the basis of the rent receipt filed by the plaintiff title of the plaintiff can not be decided and on the basis of the rent receipt it can not be said that the plaintiff has title in the land in suit, that the plaintiff has not taken any step against the R.S. and P.S. khatian and that title of the plaintiff has been proved, that defendants in support of their claim have filed an un-registered deed of gift and P.S. khatian and that as the plaintiff has not taken any exception to the preparation of P.S. khatian in respect of the land in suit in the name of the defendants and as such it can be said that the defendants have title in the land in suit, that to prove the unregistered deed of gift Ext. ‘«’ (Bangla) defendants have examined D.W.2, the writer of the deed of gift, that plaintiffs have failed to prove that they have title in the land in suit and that because of the P.S. khatian defendants have title in the land in suit, that as the plaintiffs suit is barred by limitation and that plaintiff failed to prove its case and such the question of defendant’s stay on the land in suit as permissive possessor is redundant, that the plaintiffs suit is hit by the provision of section 10 of the Code of Civil Procedure since other Class Suit No. 83 of 1967 filed by the defendants is still pending, that plaintiffs suit as framed is not maintainable.

5. As against the judgment and decree of the trial Court the plaintiff went on appeal. The

appellate Court upon the findings that plaintiff failed to produce and prove any document of title either in favour of itself or in the name of Yakub AH Dobhash and as against that defendants proved that the land originally belonged to Abdul Majid Dobhash and the R.S. and P.S. khatian was prepared in his name and the P.S. khatian has been prepared in the name of the defendant No.l, that plaintiff has not challenged the khatian prepared in the name of Abdul Majid Dobhash and in the name of defendant No.l and as such correctness those of remain unrebutted and that the defensants in support of their claim in the land in suit have produced the deed of gift Ext. ‘Uma’ (brought on record through the evidence of

D.W.2, claimed to be the writer of the deed which is not a registered one), that cause of

action for filing the suit by the plaintiff arose prior to the filing of the Other Class Suit No. 83 of 1967 by the defendants and as such plaintiffs suit is barred under sections 11 and 10 of the Code of Civil Procedure since the suit, i.e. Other Class Suit No. 83 of 1967 filed by the defendants is pending. The appellate Court also held that the suit was barred by limitation since the same was filed “after a long period of 20 years” i.e. from 1967. that from the perusal of the memorandum of appeal it appears that the appellant did not

specifically made out any case for interfering with the judgment of the trial Court and that memorandum of appeal also does not disclose in which respect the trial Court was in error of committed illegality and thereupon holding that the judgment and decree of the trial Court does not call for interference dismissed the appeal.

6. The plaintiff moved the High Court Division in revisional jurisdiction .and

obtained the Rule. The High Court Division on consideration of materials on record

observed that the Courts below upon wrong assumption of fact and law have held that the

suit was barred under the provision of section 11 of the Code of Civil Procedure and that the suit was also barred by limitation since the suit was not filed in 1967 when the cause of action first arose on the institution of the other Class Suit No. 83 of 1967 filed by the defendants seeking a decree for permanent injunction and obtained an order of temporary

injunction therein, that the decision made by the courts below that the suit was barred under section 11 of the Code of Civil Procedure was totally misconceived since the question of permissive possession of the defendants on the date of institution of the suit filed by the plaintiff was not an issue in any suit and that was not finally adjudicated between the parties in the suit filed by the plaintiff, that from the defendants’ side no paper relating to the claim of possession acquired otherwise then by permission granted by the plaintiff was placed before the Court, that the decision of the courts below that the suit was barred by limitation is not sustainable in law as “in a suit for ejectment of a licensee, the question to be firstly determined whether the defendant is a licensee or permissive possessor under the plaintiff, if that is established, the question of limitation will not arise at all because a licensee occupies the property according to the pleasure of the licensor and that occupation does not confer upon the right of exclusive possession as understood in law”, that the appellate Court on the misconception of the law and the issue involved in the suit and that upon mis-appreciation of the issue involved in the land in suit and that also proved the case that the defendants are the licensees of the plaintiff upon production of the “documents of the title and the paper showing proof of possession by Ext.l series, Exts. 5,6 and 7 and also proved the applications addressed to the school authority by the defendant No. 1, which were marked Exts. 9 and 9(Ka) indicated that

the husband of the defendant No. 1 has been staying as permissive possessor or as licensee in the suit premises”.

7. Ext.l series are the R.S. khatians, Ext.2-P.S. khatian, Exts.3 and 3(ka)-patta, Ext.5-Municipal Assessment Register, Ext.6, Municipal Tax receipt, Ext.7- Rent receipt

issued by the Government, Exts.9 and 9(ka) dated 25.3.1967 and 25.1.1967 respectively

applications filed by the defendant No.l to the school authority seeking time for vacating the premises in suit.

8. The High Court Division observed that the courts below have not considered the Exts. 9 and 9(ka) “to arrived at a finding whether the defendants are a licensee under the plaintiff or they are in possession of the premises otherwise then licensee”, that P.S. khatian stood in the name of the school and “There is no contrary evidence that the defendants acquired their right in the suit premises otherwise then the grant made by the plaintiff, inasmuch as their claim in the written statements that the suit premises was gifted by the previous owner to the predecessor of the defendants has not been proved by any admissible evidence”, that from the perusal of the Exts. 9 and 9(ka) and Ext. 10 (letter written by the plaintiff to the defendants to leave the premises in suit), it is seen that the defendants are permissive possessor of licensee in the suit premises and the material aspect was not considered by the courts below, that one who is mare licensee, license so granted is without any other right is revocable at any time at the will of the licensor and that there is no provision in the Limitation Act providing limitation for filing a suit within specified time, that in view of the provision of section 116 of the Evidence Act licensee is incompetent to question the title of the licensor, that the finding of the courts below that the suit was barred by limitation and that plaintiff was not able to

prove a “good title is totally misconceived and cannot be maintained”, the licensee is not

competent to take a plea of adverse possession, that “the possession of the plaintiff school having been established by various documentary evidence as well as the oral evidence

and therefore, under the equitable rule of law, the defendants who were given permission

to occupy the suit premises by the original person in possession that is the plaintiff

school, cannot say that plaintiff has not title to the subject matter of the contention urged by the learned Advocate of the opposite party does not stand”. On the aforesaid observations and findings the High Court Division made Rule absolute.

9.Leave was granted to consider the contention that Exts. 9 and 9(ka) having not been

proved in accordance with law are inadmissible in evidence and that there having no other evidence in proof of licensee status of the defendants, the High court Division fallen into an error of law in holding that the defendants are licensees under the plaintiff, that it was inappropriate for the High Court Division to give an independent decision on the facts over which both the courts were silent and in that state of the matter the High Court Division was required to send back the case on remand for decision on the point.

10. It appears the last contention has been made as regard the Exts. 9 and 9(ka) i.e. the

applications filed by the defendant No.l on the death of her husband for allowing them to

stay on the land in suit for some time with the averment that they would vacate the land in suit within the time, if allowed. It also appears the school i.e. plaintiff allowed time but

instead of vacating the premises in suit they filed Suit No. 83 of 1967 seeking a decree for permanent injunction.

11. It is seen from the materials on record the school authority is claiming the land on the

basis of the patta of June 27, 1912 and August 24, 1938. The plaintiff in support of title filed the sight plan of the school which was marked as Ext. 4, copy of the municipal assessment register Ext.5, municipal tax receipts (2) Ext. 6 series, rent receipts (2) Ext. 7 series, notice of the municipality relating to tax matter (ext.8), Exts.9 and 9(ka), applications of the defendant No.l seeking time, letter of the school authority of July 20, 1969 to the defendant No.l, Ext. 10 and the notice dated 3.9.1970 to the defendant No. 1 by the school. As against the said documents of the plaintiff in support of its title in the land in suit defendants’ case was that the land in suit was gifted to their predecessor Genoda Ranjan Chakraborty, who according to the defendants was a teacher of the school but according to the plaintiff i.e. school was a clerk, by Abdul Majid Dobhash. The gift to defendants’ predecessor it appears intially was an oral gift and lateron a memorandum of gift was prepared mentioning name of Abdul Majid Dobhash. There is nothing in the pleading of the defendants or in the deposition of the defendant No.2 in which year Abdul Majid Dobhash orally gifted the property being satisfied to Genoda Ranjan Chakraborty, who claimed to have been a house tutor of the children of Abdul Majid Dobhash, some time in between 1925 and 1930. It may be mentioned there is no reliable evidence on record to support the defendants’ case of gift by Abdul Majid Dobhash while their predecessor was a house tutor of the childern of said Abdul Majid Dobhash. As stated hereinbefore the plaintiff is claiming the land on the basis of the patta of the year 1912 and 1938. The defendants as observed by the trial Court and the lower appellate Court that in proof of their case filed the Ext. ‘Uma’ i.e. memorandum of gift (not registered) and tried to prove the said memorandum of gift through the evidence of D.W.2. D.W.2 deposed on March, 1990. The witness has stated that he wrote the unregistered deed of gift by Abdul Majid Dobhash and he wrote the said memorandum of gift on the dictation

of the donor i.e. Abdul Majid Dobhash. The witness in his cross-examination has stated

that at the time of writing the deed of gift in 1965 certain Khidir Babu, Dhirandra, Abdul

Majid Dobhash and Majid Hawlader were present and they are alive. The witness has

stated that he for the first time new Abdul Majid Dobhash of the date of writing the deed

of gift. The deposition of this witness has not been corroborated by any other independent

and competent witness. It may be mentioned persons, including Abdul Majid Dobhash who said to have gifted the property to the defendants’ predecessor, who were present as stated by D.W.2, at the time of writing the deed of gift were alive but none on them were examined. Abdul Majid Dobhash was the son of Yakub AH Dobhash and Yakub AH Dobhash gifted the property in suit to the school in 1912. The P.S. khatian in respect of the land wherein the school situates and part of which is the subject matter of the suit is in the name of the school and the school is paying rent as evidenced by Ext. 7 series. It appears from the judgment of the Court of appeal below and the Court of first instance that P.S. khatian has been prepared in the name of the defendants as regard the land in suit but the said Courts were quite oblivious of the fact that there was no basis for the preparation of the P.S. khatian in the name of the defendants in respect of the land in suit. The trial Court as well as the appellate Court did not at all consider the vital evidence Exts. 9 and 9(ka) which were filed by the defendant No.l seeking time for vacating the land in suit. Although defendant No.2 who figured as D.W.I has denied that the signature

appearing in the said Exhibits were not of his mother but defendant No.l herself has

not come before the Court to deny the fact of filing of the said applications i.e. Exts. 9 and 9(ka) and to say that the signatures appearing in the Exts. 9 and 9(ka) are not of her. The said Exhibits have come from the custody of the proper and competent authority i.e. from the custody of the school. The said Exhibits were also put into evidence through the competent witness i.e. P.W.I, Head Master of the school and Secretary of the school in whose custody the papers were. The Court of appeal below as well as the Court of first instance in discarding the case of the plaintiff that the defendants were the licensees of the plaintiff did not at all consider the Exts. 9 and 9(ka) whcih demolished the claim of the defendants that they were and are not the licensees of the school. In this background of the fact the High Court Division was quite correct in holding that the judgments of the Court of appeal below and of the trial Court were based on misconception of the law involved in the case and plaintiffs suit was dismissed on non-consideration of the material evidence. The defendants claimed that the land was gifted to their predecessor in between 1925 and 1930 by Abdul Majid Dobhash and that lateron by the Ext. ‘Uma, in 1965 Abdul Majid Dobhash gifted the land by a deed of gift. At no point of time defendants have paid rent to the landlord or to the Government of Bangladesh and that no tax or lavy was paid to the municipal authority and that no municipal holding was

opened in the name of the defendants’ predecessor or in the name of the defendants in

respect of the land in suit. On the other hand the plaintiff has filed the papers to show that

the municipal holding stand in the name to the school and the school is paying rent and that municipality issued letter in the name of the school for the rent of the holding and that the school has paid rent of the Government in respect of the land in suit. In our view in the background of the aforesaid facts the Court of appeal below and the trial Court were in serious error in holding that the plaintiff failed to prove its title and possession in the land in suit. The trial Court as well as lower appellate Court held that the suit was barred as per provision of sections 10 and 11 of the Code of Civil Procedure because of the pendency of the Other Class Suit No. 83 of 1967 which was filed by the defendants seeking for a decree of permanent injunction and still pending. The trial Court as well as the appellate Court were quite unmindful of the fact that in a suit for permanent injunction title of the parties is not adjudicated. The trial Court as well as the appellate Court was also in error in holding that the suit was barred under section 11 of the Code of Civil Procedure since the subject matter of the suits i.e. Other Class Suit No. 12 of 1990 filed by the plaintiff and the Other Class Suit No. 83 of 1967 was not the same and the issues involved in the suits are also not the same. The trial Court as well as the appellate Court was of the view that the suit was barred by limitation since it was filed after long 20 years computing form 1967, i.e. the year in which the defendants filed the suit for permanent injunction, in that thereby the license that was granted by the plaintiff did

stand revoked. In that regard view expressed by the High Court Division and the decision

made in our opinion is correct.

12. In the background of the discussions made hereinabove we find on merit in the appeal.

13. Accordingly the appeal is dismissed.

14. There is no order as to costs.

Ed.

Source: IV ADC (2007), 37