Appellate Division Cases
(Civil)
PARTIES
The Divisional Forest Officer Cox’s Bazar ……………..Appellant.
-VS-
Abdur Rahim Chowdhury and others …………………..Respondents.
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 19th April 2006.
Order 41 Rule 31 of the CPC
Against the plaintiff is illegal, collusive and without any basis and jurisdiction and the plaintiff is not liable for the stolen trees on the averments that he auction purchased the forest trees of certain area ………………….(2)
Any allegation that the plaintiff himself committed the theft or in what way or manner the plaintiff is connected with the alleged theft and moreover the appellate court has not reverted the finding of the trial court as required under Order 41 Rule 31 of the C.P.C. The High Court Division further held that because of non reading and misreading of the evidence on record the judgment of the appellate court suffers from illegality and the learned Assistant Attorney General also failed to convince the Court that the fine can be legally imposed upon the plaintiff in terms of the agreement of lease. It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahmedullah, the purchaser of Lot No. 10. no case was filed against Ahmeduullah and further no cases were also filed against the purchasers of the contiguous plots…………….(8)
M.A. Azim Khair, Deputy Attorney General instructed by A.KM. Shahidul Huq,
Advocate-on-Record ………………………. For the Appellant
Abu Bakar Siddique, Advocate, instructed by Nawab Ali, Advocate-on-Record ……………….For the Respondents
JUDGMENT
1. Md. Tafazzul Islam J: This appeal by leave has been filed against the judgment dated
4.1.1999 of a Single Bench the High Court Division passed in Civil Revision No. 216 of
1997 making absolute the Rule obtained against the judgment and decree passed by the learned District Judge Cox’s Bazar in Other Appeal No. 44 of 1991 reversing those of dated 12.2.1991 passed by the learned Subordinate Judge (now Joint District Judge).
Cox’s Bazar in Other Suit No. 81 of 1989 decreeing the suit.
2. The respondent No.l, as plaintiff, instituted the above suit seeking declaration that the proceedings of Case Nos. 28/Thain 144/6 of 1988-89 and 23/Mon/170 Huwai of 1988-89 initiated by the defendant No.l against the plaintiff is illegal, collusive and without any basis and jurisdiction and the plaintiff is not liable for the stolen trees on the averments that he auction purchased the forest trees of certain area identified as Lot No.9 within
Mouja Huwai and in terms of the conditions of the auction sale he after cutting down the trees of that area submitted report of completion on 31.3.89 ; he on 12.4.89 came to know that some unknown persons have stolen two trucks of timbers of the Forest Department from Thainkhali Range at night; then on 13.4.89, he through his staff, informed the above to the defendant Nos.2 and 3 and since they did not take any action he on 15.4.1989 again informed them about the same but again no action having been taken he wrote a letter requesting the defendant No.l for making enquiry and on 11.7.1989, he personally went to the office of the defendant No. 1 to hand over to him the said letters but since the defendant No.l was absent in his office on that day he came back handing over the said letters to the defendant No.2; thereafter he came to know that the defendant No.5 seized the above timbers and kept those in his Beat Office; even though the defendant No.5 seized the above timbers on the information communicated by the plaintiff but the defendant No.4, asked the defendant No.5 to initiate proceeding against the plaintiff and accordingly the defendant No. 5 instituted Case No. 28/Thain/144/6 of 1988-89 against the plaintiff and the defendant No. 4 also filed Case No. 23/Mon/170/Huwai of 1988-89 regarding the same stolen trees which were recovered from the possession of
Ahmmedullah, purchaser of the abjacent Lot No. 10, and thereafter fine of Tk. 57,525/- was illegally imposed upon the plaintiff in the aforesaid two cases and hence the suit.
3. The defendant No. 1 contested the suit by filing written statement stating, inter alia, that after the plaintiff submitted report of completion in respect of his Lot No.9 within 14 days the lot area was checked by the defendant and it was found that the plaintiff has illegally stolen the trees and accordingly the above cases were filed and fine was imposed; in terms of condition Nos. 28 and 29 of the auction sale the defendant No.2 as well as the defendant No.5 on repeated occasions by issuing notice requested the plaintiff to pay fine; in condition No. 21 of the auction sale it has been stipulated that the security money will be refunded after expiry of 2 month from the date of submitting the completion report and after submission of the completion report if the authority after checking the area around 1½ miles radious of the lot area does not find any illegal activity then they will recommend for refund of the security deposit but if any illegal activity is found then forest cases are to be filed against purchaser of the Lot and on
14.4.89, the forest authority, after checking the lot area, found that trees were illegally cut and taken way from the lot area of the plaintiff and so the above cases were filed. The learned Subordinate Judge (now Joint District Judge), after hearing, decreed the suit. The defendant No.l then preferred Other Appeal No. 44 of 1991 in the Court of District Judge.
Cox’s Bazar, who after hearing, allowed the appeal. The plaintiff then moved the High
Court Division and obtained Rule in Civil Revision No. 216 of 1997 and, after hearing, the High Court Division made the Rule absolute.
4. Leave was granted on the submissions that the High Court Division failed to appreciate the case of the defendant appellant; the appellate court found that the findings of the trial court were inconsistent with the terms and conditions of the auction sale; the High Court
Division without any basis whatsoever held that the conditions as incorporated in the auction sale document is against natural justice, the High Court Division without arriving at any finding to the effect that the appellate Court failed to consider the evidence on record reversed the findings of facts of the appellate court, the last court of facts, which are very much based on appreciation of the evidence on record.
5. The learned counsel for the appellant submits that the appellate court, on proper appreciation of the evidence on record reversed the finding of the trial court to the effect that the defendant no.l in his deposition did not deny the claim of the plaintiff and that the
Respondent submitted completion report on 31.3.1989 and that the plaintiff is not responsible for the trees stolen on a subsequent date from the surrounding area in as much as the above reasoning are clearly inconsistent with the terms and conditions of the auction sale; the appellate court reversed the finding of the trial court to the effect that the defendants should have initiated proceeding against the contiguous lot holder holding that the reasoning of the trial court in this regard being beyond pleading, the evidence in this regard were improperly admitted and the High court division reversed the above findings of the appellate court without proper appreciation of the material evidence on record; further the High Court Division did not al all consider the provisions of condition Nos. 21, 28 and 29 of the auction sale and that the above condition No. 21 provides that even after submission of the completion report the liability of the allottee exists for a period of two months and that in view of the provisions of condition Nos. 28 and 29 the plaintiff can not escape liability and further the points involved in the case are of great public importance as it involves allotments of forest land for cutting timber.
6. The learned counsel for the plaintiff respondent submitted that the appellate court failed to consider that the plaintiff submitted completion report on 31.3.1989 and the trees were stolen on 12.4.1989 and accordingly the plaintiff had no liability in respect of the stolen trees; the stolen trees were recovered from the possession of one Ahammad Ullah, purchaser of adjacent Lot No. 10, but even then without initiating any proceeding against him and also against the purchasers of contiguous Lot Nos. 5, 7 and 8 cases were filed against the plaintiff; condition Nos. 21, 28 and 29 of the auction sale will not be applicable against the plaintiff at all in as much as in their written statement the defendants specifically pleaded that trees were stolen from Lot No. 9 which was allotted to the plaintiff and the defendant No. 1 in his deposition stated that the trees were stolen from Lot No. 9 whereas under the terms of the auction sale the plaintiff, after cutting the trees from that lot, submitted completion report and there is nothing in the evidence on record that still there were suitable trees to be cut in that Lot; the appellate court committed error in holding that the deposition of P.Ws. 2 and 3 are beyond the pleadings specially when no such objection was raised in this regard at the time of taking their depositions.
7. As it appears the trial court decreed the suit on the findings, amongst others, that the plaintiff was not responsible for the loss alleged to have been caused due the cutting and taking away of the trees from the lot adjacent to his lot because he after cutting the trees from his own lot i.e. Lot No. 9. already submitted his completion report on 31.3.89, i.e. long before the alleged theft. But the appellate Court allowed the appeal holding that the reasons, based on which trial court decreed suit, are the not sustainable and if condition Nos. 21. 28 and 29 of auction sale are read together it will appear that the plaintiff, even after submission of the completion report, continued to be held liable for a period of at least two months as specified in condition No.21 and moreover condition Nos. 28 and 29 clearly show that the plaintiff is simultaneously held liable for the trees stolen from the unsold contiguous area and the intention for incorporating the above conditions in the terms of auction sale are that mere submission of the completion report does not end the liabilities of a purchaser of a lot and it is admitted by both sides that some trees detected the same on 12.4.89 and the defendants detected the same on 14.4.89 which ultimately led to the imposition of the fine upon the plaintiff in the two cases. The appellate Court further held that the first reasoning of the trial Court to the effect that the plaintiff submitted completion report on 31.3. 1989 in respect of Lot No. 9 and trees were stolen on 12.4.1989 and so the plaintiff is not responsible, is not correct in as much as the above reasoning contradicts condition Nos. 21. 28 and 29 of the auction sale and similarly the second reasoning of the trial court to the effect that the defendants should have initiated proceedings against the contiguous lot holders also appeared to be based on evidence improperly admitted because according to the condition No. 29 proceedings could also be initiated in respect of the lots which had not been sold and in the instant suit neither the plaintiff nor the defendants in their respective pleadings stated that the contiguous lots had been sold to any one before the timbers were stolen and the plaintiff, who deposed as P.W.I. is silent as to whether the contagious land has been sold to any person and that P.W.2. the clerk of the plaintiff, in his deposition stated that the stolen trees were found with the purchaser of Lot No. 10 and similarly P.W.3, a truck driver, stated that the trees in question were stolen away from lot No. 10 which had been sold to one Nurul Amin and the above statements admitted and hence cannot be relied.
8. However as it appears the High Court Division made the Rule absolute holding that in the instant case the plaintiff has done more than that was necessary by reporting the theft on 13.4.89 but no action was taken and simply a case was initiated in 14.4.1989, the next date, and therefore the plaintiff cannot be held responsible for the loss due to cutting and taking away of the trees specially when nowhere within the four corners of the case filed on 14.4.1989 there is any allegation that the plaintiff himself committed the theft or in what way or manner the plaintiff is connected with the alleged theft and moreover the appellate court has not reverted the finding of the trial court as required under Order 41 Rule 31 of the C.P.C. The High Court Division further held that because of non reading and misreading of the evidence on record the judgment of the appellate court suffers from illegality and the learned Assistant Attorney General also failed to convince the Court that the fine can be legally imposed upon the plaintiff in terms of the agreement of lease. It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahmedullah. the purchaser of Lot No. 10. no case was filed against Ahmeduullah and further no cases were also filed against the purchasers of the contiguous plots.
9. Accordingly we are of the view that the High Court Division on proper consideration of the evidence and the materials on record made the Rule absolute. The learned counsel for the appellant also could not point out any illegality or infirmity in the decision of the
High Court Division so as to call for any interference.
10. Accordingly the appeal is dismissed with cost.
Ed.
Source: IV ADC (2007), 292