Swapan Roy and others Vs. Shashadhar Roy and others

Appellate Division Cases

(Civil)

PARTIES

Swapan Roy and others…………. Petitioners.

-Vs-

Shashadhar Roy and others……………… Respondents.

JUSTICES

Syed J. R. Mudassir Husain CJ

M.M. Ruhul Amin J

Amirul Kabir Chowdhurv J

Judgment Dated: 15th March 2006

For partition of ejmali property and for separate saham in……………. (2)

The trial court and appellate court upon consideration of the materials on record concurrently held that the plaintiffs could not prove either by documentary of oral evidences, their title in the suit land rather the evidence on record is that they were barga cultivators in respect of the suit land……………………. (6)

The High Court Division also held that both the trial court and the appellate court upon elaborate discussion of the evidence on record came to the findings that the plaintiffs have failed to prove their title and possession in the suit land and accordingly discharged the Rule……………………………. (7)

Md. Nawab Ali, Advocatc-on-Record. …………………….For the Petitioners

Respondents ………………………………….Not represented.

Civil Petition For Leave To Appeal No.580 of 2005

(From the judgment and order dated 09.04.2005 passed by the High Court Division in Civil Revision No.6823 of 2002.)

JUDGMENT

M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 09.04.2005 passed by a Single Bench of the High Court Division in Civil Revision No.6823 of 2003 discharging the Rule.

2. The plaintiffs instituted Title Suit No. 10 of 1991 in the Court of Assistant Judge, Khulna for partition of ejmali property and for separate saham in respect of 3.23 acres of land stating, inter alia, that an area of 13.73 acres of land recorded in C.S. Khatian No.257/3 of MouzaBajua under Police Station-Dacope, District-Khulna originally belonged to Satish Chandra Chattopadhaya who engaged one Modhu Sudan Mondal father of the plaintiffs as bargader by barga kabullyat dated 07.06.1926. Satish Chandra

Chattopadhaya subsequently settled the suit land orally to one Pashupati Mukhpadhaya who had been possessing the suit land. Modhu Sudan Mondal father of the plaintiffs continued a bargader under Pashupati Mukhpadhaya also. Subsequently Pashupati Mukhpadhaya gave a power of attorney in favour of Satish Chandra Chattopadhaya who had been possessing the said land. Modhu Sudan Mondal died in Poush in 1335 B.S.

leaving 2 sons, namely, Shashadhar Roy and Shahedev Roy the plaintiff Nos.l and 2 who were cultivating the land as their father used to do. The rent receipts of the plaintiffs were lost in 1971. With the consent of Pashupati Mukhapadhaya, Satish Chandra Chattopadhaya on 10.06.1957 transferred 4.49 acres of land to plaintiff Nos.3, 2.46 acres of land to plaintiff Nos.l and 2, 3.30 acres of land to Nawsher AH and another 3.30 acres of land to the defendant No.7 for proper consideration. The plaintiff Nos.l and 2 purchased the land in benami of Md. Tabarak Hossain. Satish Chandra Chattopadhaya in lieu of kabala executed a deed of usufructuary mortgage for a term of 15 years in favour

of the plaintiffs and other purchasers since there was restriction for transfer for more

then 10 bighas of land at that time. In fact those deed, are sale deeds. An area of 3.90

acres of land of the plaintiffs were acquired by the Government and they had taken compensation money for the said land. Tabarak Hossain Mollah executed and registered Nadabi deed dated 01.11.1989. During the survey operation the entire 13.73 acres of land was recorded in the name of Pashupati Mukhapadhaya in S.A. Khatian. The plaintiffs have been possessing the suit land for more than 12 years and the defendants had no possession over the same. One Mobinul Hague, defendant No.7 fraudulently transferred his share of land in favour of the defendant Nos.1-4 by a kabala dated 30.9.1961 and on the basis of that kabala the defendant Nos. 1 -3 got their names mutated in respect of 5.87 acres of land by filing Mutation Case No.838 of 1961-62 without serving any notice upon

the co-sharers. Hence the suit.

3. The defendant Nos.1-3, 8 and 9 contested the suit by filing three sets of written statements denying the material allegations made in the plaint. Their further case

is that the defendant Nos.1-3 auction purchased the land and defendant No.8 settled

5.87 acres of land in favour of defendant Nos.1-4 and they are in possession after

getting their names mutated in the records of the Revenue Department. The Plaintiffs

have no possession.

4. The trial court on consideration of the materials on record decreed the suit. On appeal in Title Appeal No. 10 of 1991 the appellate court dismissed the appeal. The High Court Division also discharged the Rule as noticed earlier.

5. We have heard Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioner

and perused the judgment of the High Court Division and other connected papers.

6. The trial court and appellate court upon consideration of the materials on record

concurrently held that the plaintiffs could not prove either by documentary of oral

evidences, their title in the suit land rather the evidence on record is that they were

barga cultivators in respect of the suit land.

7. The High Court Division also held that both the trial court and the appellate court

upon elaborate discussion of the evidence on record came to the findings that the

plaintiffs have failed to prove their title and possession in the suit land and accordingly

discharged the Rule.

8. The learned Advocate-on-Record for the petitioner could not point out any legal

infirmity in the judgment of the High Court Division.

9. Accordingly, the petition is dismissed.

Source : V ADC (2008), 136

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