Tara Mia Vs. Taru Mia

Appellate Division Cases

(Civil)

PARTIES

Tara Mia & others ……………………………………Appellants.

-Vs-

Taru Mia & others ………………………………….Respondents.

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATED : 20th October 2005

State Acquisition and Tenancy Act 1950, (SAT) (East Bengal XXVIII of 1951), Section 19(1).

Acquired exclusive title in the suit land by way of purchase from the heirs.

The plaintiffs are in ejmali possession of the suit land with the defendants and have been enjoying the usufructs of the suit land by plucking fruits from tree and grazing cattle. The defendants suddenly started constructed a hut in a better portion of the suit land without making any amicable arrangement with the plaintiff. (2)

The High Court Division held that the courts below proceeded to discuss the issues on the assumption that the suit was suit for title, that both the courts below failed to notice that by addition of some persons as per objection of the defendants, the plaintiffs had changed the character of the suit from a suit for partition and there is absence of vital element of partition in the plaint and that both the courts below did not read Exits. 1 and l(a) in as much as Ext.l (a) shows that the vendors sold their rent receiving interest in the suit jote. The genuineness of Ext. A registered in 1939 cannot be disputed on the basis of evidence adduced in 1965 and that the suit for partition simplicitor is not maintainable (6)

Civil Appeal No. 10 of 1998

(From the Judgment and Decree dated 07.05.1997 passed by the High Court Division in 2nd Appeal No. 143 of 1969)

Mr. Mahbub Ali, Advocate instructed by Mr. Md. Sajjadul Huq, Advocate-on-Record. For the appellants

Mr. Tabarak Hossain, Advocate instructed by Mr. Ahsanullah Patwary, Advocate-on-RecordRespondent No. 7 For the

Ex- parte Nos. 1-6 & 8-10. Respondent

JUDGDMENT

1. M. M. Ruhul Amin J:- This appeal by leave is directed against the judgment and decree dated 07.05.1997 passed by a single Bench of the High Court Division in 2nd appeal No. 143 of 1969 allowing the appeal.

2. Short facts are that Sajjad Ali and others had 8 annas share and Sharafat Ali and others had remaining 8 annas share in the suit land. Sajjad Ali and others sold their shares to Abdur Razzak, plaintiff No. 1 and Abdul Jalil plaintiff No. 2, by kabala dated 19th April , 1942. In respect of the remaining 8 annas share, plaintiff Nos. 1,2 and 3 and Jawashir Uddin, the predecessor of the plaintiff Nos. 4-9 and Modaris Ali, the predecessor of defendant Nos. 1-7 were tenants under Sharafat Ali who thereafter by kabala dated 29th August 1938 sold the remaining 8 annas share to them. Accordingly, plaintiff Nos. 1,2 and 3 said Jawashir Ali, the predecessor of plaintiff Nos. 4 -9 became owners of 12 annas share and odd share of the suit land. Modaris Ali died leaving the defendants who have 2 annas share and odd shares. The plaintiffs are in ejmali possession of the suit land with the defendants and have been enjoying the usufructs of the suit land by plucking fruits from trees and grazing cattle. The defendants suddenly started constructed a hut in a better portion of the suit land without making any amicable arrangement with the plaintiff, when they demanded upon the defendants in March 1964 for an amicable partition, which the defendants refused and hence the suit.

3. The defendants contested the suit by filing a joint written statement stating, inter alia, that one Yasin Ali of Village Bagha had jote right in the suit land under Sajjad Ali and others. The said Yasin Ali died leaving a son Khalique and a widow, who sold the land to Wasir Ali, Modaris Ali and Abdul Bari by kabala dated 25th Ashar, 1342 B.S. Abdul Bari died leaving two daughters. Wasir Ali sold his share to defendant Nos. 1 and 2 by kabala dated 8th Jaishtha 1355 B.S. They are in possession of the suit land. The said Madaris Ali died leaving behind widow defendant No. 5, 3 sons and 2 aughters. Defendant No. 1 is in exclusive possession of the suit land and the record was also prepared in his name. The suit is thus liable to be dismissed.

4. The suit was decreed by the trial court hooding, inter alia, that the defendants did not disclose in their written statement as to when Yasin Ali took settlement of the suit land and that they did not file any paper of jote right, rather D.W. 1 admitted that the defendants have no rent receipts during the tenure of Yasin Ali Ext. A. The kabala by which Wasir Ali, Madaris Ali and Abdul Bari are said to have purchased from the heirs of Yasin Ali are forged documents created by Yasin Ali, Madaris Ali and Wasir Ali in collusion with each other and the claim of the defendants about sale of the share of Wasir Ali to defendant Nos. 1 and 2 and the story of missing of the kabala as introduced is a concocted story and that the defendants have miserably failed to substantiate the story of taking settlement by Yasin Ali of the suit land and Ext. A is a collusive document; that from Ext. l(a) it transpires that the plaintiffs have jote right in respect of 8 annas share of Sharafat Ali and that the plaintiffs witnesses have corroborated each other about the possession of the plaintiffs in the suit land.

5. On appeal by the defendant respondents the learned appellate court dismissed the appeal holding, inter alia, that there is no riliable evidence in support of the defendants case about taking settlement of the suit land by Yasin Ali from Sajjad Ali and others and that Abdul Bari, one of the purchasers from the heirs of Yasin Ali is admittedly not in possession of the suit land which created doubt about the genuineness of Ext. A and that Ext.l the kabala by which plaintiff Nos. 1 and 2 have purchased the interest of Sajjad Ali’s 8 annas share and ” Ext. l(a) a deed written by Abdul Aziz who used to live with Wasir Ali and sided with the defendants during the trial of the suit appear to be genuine documents by which the plaintiffs have acquired title and that all the P.Ws. have substantially corroborated the plaintiffs story of possession in the suit land.

6. Being aggrieved, the defendants preferred Second Appeal No. 143 of 1969 before the High Court Division against the aforesaid judgment and decree and the learned Single Judge of the High Court Division by the judgment and decree dated 7th May, 1997 allowed the appeal upon set A ting aside the judgments of the courts below.

7. The High Court Division held that the courts below proceeded to discuss the issues on the assumption that the suit was suit for title, that both the courts below failed to notice that by addition of some persons as per objection of the defendants, the plaintiffs had changed the character of the suit from a suit for partition and there is absence of vital element of partition in the plaint and that both the courts below did not read Exits. 1 and l(a) in as much as Ext.l (a) shows that the vendors sold their rent receiving interest in the suit jote. The genuineness of Ext.A registered in 1939 cannot be disputed on the basis of evidence adduced in 1965 and that the suit for partition simplicitor is not maintainable.

8. Leave was granted to consider the submission that the learned Single Judge of the High Court Division erred in law in failing to consider that both the courts below disbelieved the defendants claim that Yasin took jote of the suit land from Sajjad AH and others and the defendants have not acquired exclusive title in the suit land by way of purchase from the heirs of Yasin Ali by Kabala Ext. A, which is a collusive document created by Wasir Ali, Modans Ali and Abdul Bari and that the plaintiffs have acquired title by was of purchase by kabala Exits. 1 and l(a) and the submission that the concurrent findings are binding upon the High Court Division unless reless reversed with reasons but the learned Single Judge without adverting to those findings believed the kabala, Ext. A on the sole ground that it was the earliest documents and the next submission that the learned Single Judge of the High Court Division upon a superficial consideration of the plaint and the judgments of the courts below held that the elements of partition are absent in the plaint and that the suit for partition simplicitor is not maintainable without at all assigning any reason as to why the suit for partition simplicitor is not maintainable without at all assigning any reason as to why the suit for partition simplicitor is not maintainable and the further submission that the learned Single Judge erred in law in failing to consider that admittedly both the parties are co-sharers on the basis of purchase of 8 annas share of the suit land from Sharafat Ali by Ext. l(a) and that the plaintiffs are exclusive owners of 8 annas share of Sajjad Ali and others by way of purchase any kabala Ext. 1 and therefore, the plaintiff being admitted co-sharers are entitled to saham according to their share in the suit land and the learned Single Judge without considering the said admitted fact illegally dismissed the suit holding that the simple suit for partition is not maintainable.

9. We have heard Mr. Mahbub Ali, the Counsel for the appellant and Mr. Tabarak Hossain, the learned Counsel for respondent No. 7 and perused the judgment of the High Court Division and other connected papers.

10. It is undisputed that the suit land belonged to Sajjad Ali and others. The plaintiffs, case is that Sajjad AH and others sold their share to Abdur Razzak, plaintiff No. 1 and Abdul Jalil, plaintiff No. 2 by kabala dated 19th April, 1942. In respect of the remaining 8 annas share, the plaintiff Nos. 1, 2 and 3 Jawashir Uddin, the predecessor of the plaintiff Nos. 4 -9 and Modaris Ali, the predecessor of defendant Nos. 1-7 were tenants under Sharafat Ali who thereafter by kabala dated 29th August 1938 sold the remaining 8 annas share to them and accordingly, they became owners of 12 and odd annas share of the suit land The defendants, case on the other hand , one Yasin Ali had jote right in the suit land under Sajjad Ali and others. The said Yasin Ali died leaving a son Khalique and a widow, who sold their interest to Wasir Ali, Modaris Ali and Abdul Bari by kabala dated 25th Ashar, 1342 B.S. Abdul Bari died leaving two daughters. Wasir Ali sold his share to defendant Nos. 1 and 2 by kabala date 8th Jaishtha 1355 B.S and thereafter , accordingly they are in possession of the suit land. Both the trial court and appellate court disbelieve the kabala dated 08.08.1935 executed by Tamija wife of Yasin Ali and Khalique son of Yasin Ali in favour of Wasir Ali, Modaris Ali and Abdul Bari Ext- A on the ground that it was collusively created by the three brothers, namely, Wasir Ali. Modaris Ali and Abdul Bari.

11. The learned Advocate for the appellant could not give any satisfactory explanation as to why the old document of they year 1935 should be disbelieved. The respondents submitted certified copy of this registered kabala of the year 1935 Ext. A by a separate paper book. They also filed photo copy of the order dated 13.08.1960 passed by Assistant Settlement Officer, Sylhet in objection Case No. 629 under section 19(1) of the S.A.T Act filed by the present plaintiffs against defendant and another. From these papers it appears that the plaintiffs claim the suit land by virtue of kabala of the year 1942 and the present defendants claim the said land on the basis of the kabala dated 08.08.1935 and the objection of the plaintiffs regarding recording of the names of the defendants in the S. A. Khatian was rejected.

12. As it appears the Assistant Settlement Officer, upon examination of local witnesses and perusal of the papers and documents, rejected the objection filed by the plaintiffs against recording of the land in the name of the defendants in the S.A Khatian on the ground that the defendants were in possession. Some rent receipts showing payment of rent by the defendants have been filed along with these documents before the Assistant Settlement Officer.

13. The trial court and the appellate court did not assign any cogent reason as to why a registered kabala of the year 1935 should be disbelieved.

14. The High Court Division further held that by Ext. 2(a) alleged kabala in favour of the plaintiffs, the rent receiving interest was transferred and not the land as it appears Ext. l(a) itself.

15. Regarding the manner of possession the plaintiffs in the plaint did not say single word accepting saying that occasionally by procuring wood, by grazing cattle and by plucking cassian leaves they posses the suit land but the defendants categorical assertion is that they possess the suit land for a long period by constructing dwelling huts and residing therein.

16. P. W. 1, who is plaintiff No. 2 in his evidence, stated that the homestead of the defendants covered the entire the suit land but later he stated that the defendant also grows vegetables in a portion of the suit land. Then he stated that occasionally the (plaintiffs) also grow vegetables but such case of possession is conspicuously absent in the plaint which is considered to be a serious production of the plaintiff. P.W.2 stated that while passing along the road by the side of the suit land he saw the possession of the plaintiffs, So he is a chance witness.

17. Thus it appears that the possession of the defendants by constructing homestead is rather admitted. It has not been stated when they constructed dwelling hut in the suit land or when they first entered into the suit land and when the plaintiffs were allegedly dispossessed from the suit.

18. It is needless to mention here that to maintain a simple suit for partition the plaintiffs must have possession in any portion of the suit land either physical and constructive and the parties must be co-sharers, A co- sharer out of possession can not maintain a simple suit for partition.

19. The High Court Division found that the plaintiffs filed an application for amendment of the plaintiff by adding some persons after filing written statement by the defendants and those persons were added as defendants in the suit but their shares were not mentioned in the petition for amendment. The High Court Division found that this changed the character of the suit as a simple suit for partition and accordingly the High Court Division was of opinion that there was absence of vital element of partition in the present suit.

20. It is on record that the kabala of the defendant Ext- A of the year 1935 in earlier in point in time than the kabala of the defendant which is of the year 1938 and 1942 Exits. l(a)& 1.

21. We have already pointed out that the trial court and the appellate court did not assign any cogent reason for disbelieving an old registered document of the year 1935.

In view of the discussion above, we are of the view that the High Court Division did not commit any error in allowing the appeal.

Accordingly, the appeal is dismissed with costs.

Source : III ADC (2006), 181.