Nuru Mia Vs. Md. Asgor Ali and others, 2 LNJ (2013) 101

Case No: Civil Revision No. 1415 of 2008

Court: High Court Division,,

Advocate: M. A. Sobhan,,

Citation: 2 LNJ (2013) 101

Case Year: 2013

Appellant: Nuru Mia

Respondent: Md. Asgor Ali and others

Delivery Date: 2012-12-12

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Rais Uddin, J.
 
Judgment
12.12.2012
  Nuru Mia
...Petitioner
Vs.
Md. Asgor Ali and others
...Opposite Parties.
 

Specific Relief Act (I of 1877)
Section 9
In a suit under section 9 of the Specific Relief Act, the plaintiff has to prove his possession and dispossession and he has to come to court within 6 months from dispossession. In the instant case, the Pws contradicted one another on material points particularly as to presence of plaintiff at the time of dispossession by defendants. The plaintiff says that he was not present at the time of dispossession when the other  Pws say that the plaintiff was present at the time of dispossession which cannot be relied on. The trail court rightly dismissed the suit…....( 20 & 22)

Jebun Nessa Zaman and others Vs. Hosne Ara Lili, reported in 53 DLR 394 and  315, ref.

Mr. M.A. Sobhan, Advocate
---For the petitioner.

Mr. Md. Ibrahim Mollah, with
Mr. Md. Ataur Rahman, with
Mr. Md. Alomgir Hossain, with
Mr. Md. Mostafa Ahmed with
Ms. Hasina Akhter, and
Mr. Bahar Uddin Al-Razi, Advocate
---For the respondents.

Civil Revision No. 1415 of 2008
 
JUDGMENT
Md. Rais Uddin, J.
 
This Rule has been issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 09.9.2008 passed by the learned Senior Assistant Judge, Rupgonj, Narayangonj in Title Suit No. 232 of 2006 dismissing the suit should not be set aside.

The relevant fact giving rise to this Rule in short is that petitioner as plaintiff instituted  Title Suit being No. 232 of 2006 under section 9 of the Specific Relief Act praying for restoration of possession of the suit land contending interalia that the suit land belongs to Gani Sheikh who died leaving behind wife, 3 sons and 3 daughters. Thereafter, by amicable partition one of the son, namely, Induri got his share from the suit land and also other properties. The property of Hasan Sheikh under khatian No. 131 has been auction vide money execution case No. 253 of 1931 which one Bonode Bihari Shaha Baul auctioned purchased the same on 10.7.1931 and got possession through Court and on 15.10.1938 vide registered sale deed No. 1736 sold it to Hasan Ali and handed over possession. After operation of C.S. Survey the said Induri by oral exchange handed over 30 decimals of land from suit dag No. 731 and Hasan Ali handed over other land being plot No. 732 to Induri. In this way Hasan got 30 decimals and 35 decimals from western portion and then he died leaving behind one son and 5 daughters.Those 5 daughters waived their right to their brother and in this way plaintiff got 30 decimals and possessing the same by paying rent, taxes and by cultivating paddy and seasonal crops unintereptedly possessing the same from the era of their father for more than 50 years. On 25.7.2006 corresponding to 10th Srabon 1413 B.S. forcefully dispossessed the plaintiff and illegally filled earth and built 4 chapra. Lastly failing to recover the suit land plaintiff filed this suit.
 
The defendant Nos. 1-9 contested the suit by filing written statement contending inter alia that the 30 decimals of suit land including other land was owned by Gani Sheikh who died leaving 3 sons viz. Hasan Ali, Induri,Kamaldi, 4 daughters and a wife and after amicable partition Hasan Ali got 15 decimals from northern 15 decimals, Induri got 15 decimals from south. Later on heirs of Induri owning and possessing his share, the plaintiff and his 5 sisters owned and possessed from northern 15 decimals. The defendants has got and possessed in middle of suit plot and built chapra ghor on 2004.The plaintiff, Nuru Mia without the consent of his sisters mortgaged 15 decimals from northern portion of suit dag to one Nur Islam. The plaintiff is not in possession.
 
At the trial plaintiff examined 4 witnesses and defendants examined 3 witnesses in support of their respective cases.
 
The trial Court after taking evidence and considering the others materials on record dismissed the suit by his judgment and decree dated 9.9.2008.
 
Being aggrieved by and dissatisfied with the said judgment and decree the plaintiff as petitioner moved this Court and obtained the instant Rule.
 
Mr. M.A. Sobhan, learned advocate appearing for the petitioner placed before this Court plaint, written statement, evidence and judgment of the trial Court and submits that suit land is paternal property of the plaintiff and possessing the same more than 50 years and father of the plaintiff exchangeed with Induri SK. After preparation of C.S khatian of 35 decimals of land of plot No. 732 and 30 decimals in plot No. 731. He submits that the learned Judge failed to frame any issue how the plaintiff acquired the land and used to possess it and also failed to arrive in decision considering the materials on record. He subm-its that the trial Court failed to consider the documentary evidence of the plaintiff although those are evidence of possession that is rent receipt Ext. 2 series. He lastly submits that the trial Court by misreading the oral evidence on record namely P.Ws.1- 3 arrived at finding that plaintiff failed to prove his case as to possession and dispossession and as such he prayed for to make the Rule absolute and set aside the judgment and decree of the trial Court.  
 
Mr. Md. Ibrahim Molla, learned Advocate for the opposite parties contested the Rule by filing counter affidavit who has supported the impugned judgment and decree and submits that plaintiff failed to prove his case as to possession and dispossession by the adducing any credible evidence. He submits that the plaintiff and defendants are co-sharer and the plaintiff and defendants has been possessing 15 decimals of land each out of 30 decimals and as such without partition the suit is not maintainable. In support of his contention he referred the case of
  1. Jebun Nessa Zaman and others vs. Hosne Ara Lili, reported in 53 DLR 394.
  2. In the case of Jaher Ali (Md) and others vs. Md. Ziarat Hossain, reported in 57 DLR 315. 
In order to appreciate the submissions of the learned Advocate of the parties I have gone through the plaint, written statement, evidence, judgment, and decree, counter affidavit and considered the submissions of the learned Advocate of the parties.
 
Now the question calls for consideration whether the learned Judge of the Court below committed any error of law resulting in an error occasioning failure of justice in passing the impugned judgment and decree.
 
On going to the materials on record it appears that plaintiff instituted the suit under section 9 of the Specific Relief Act for restoration of possession of the suit land which was dispossessed by the defendants on 25.7.2006. In order to prove his case, the plaintiff examined 4 witnesses, namely, P.W. 1 plaintiff of the case who in his deposition stated that “নালিশী দাগের ভূমিতে আমি ইরি ধানের চাষ করিতাম। নালিশী ভূমিতে বিাবদীদের দখল নাই। তাহারা গত শ্রাবনের আগের মাসে আমাকে নালিশী  ভূমি হইতে বেদখলখ করিয়াছে। ১৪১৩ সময় ১০ ই শ্রাবন বেদখল করিয়াছে।”
 
On recall PW1, in his deposition stated that “বেদখলের সময় দোহাই নিষেধ দিয়ে ছিলাম। দখল দানের জন্য অনুরোধ করি। শেষে অনুরোধ করি ১০ শ্রাবণ ১৪১৩ বাংলা সালে। দখল ছাড়ে নাই।”
 
In cross examination he stated that “বিবাদীরা ২০০৬ থেকে নালিশী জমি খায়। ২০০৬ এর শ্রাবণ  মাসের ১০ তারিখ আমাকে বেদখল করে ১০.০০/১১.০০ টায় দিকে বেদখলের সময় আমি ছিলাম না কিছুক্ষণ পরে ঘর করে। আজকে শ্রাবণ মাসের কত তারিখ আমি জানি না। আমি যে খাজনা রশিদ দিয়েছি সেগুলো স্বাধীনের আগের। ২/১ মাসের মধ্যে খাজনা দেই নাই।”
 
In cross examination P.W. 1 further stated that “নালিশী জমিতে কোন গাছ নাই। আমাকে বেদখল করার পর বিবাদীরা ২ বার ধান লাগায়। নালিশী জমিতে, নালিশী দাগের উওরাংশের ১৫ শতক ভূমি নুর্রর কাছে বন্ধক দিয়ে ছিলাম ৪/৫ বৎসর আগে।”
 
PW 2 and PW3 supported the case of the plaintiff In cross examination P.W. 2 stated that “আজকে শ্রাবণ মাসের কত তারিখ অামি জানি না। বেদখলের সময় আমি উপসিহত ছিলাম। বেদখল হয়েছে সকাল ৯.০০/১০.০০ টার দিকে। বেদখলের সময় বাদী নুর্র মিয়া ও অনেকে উপসিহত ছিল।” PW2 further stated” নালিশী জমিতে বিবাদীরা দখলের পর ফসল লাগায়। নুর্র মিয়া আমার গ্রাম বাসী, আমি সমন পাই নাই।”
 
P.W.3 in cross examination stated that “আজকে শ্রাবন মাসের কত তারিখ আমি জানি না। বেদলের সময় মেম্বার আমাকে পাঠায় নালিশী জমিতে। নালিশী জমির আর, এস, দাগ জানি না। আর, এস, খতিয়ান নং জানি না.................এ সময় আরো অনেকে উপসিহত ছিল। নুর্র মিয়া উপসিহত আরো অনেকে উপসিহত ছিল। নুর্র মিয়া উপসিহত ছিল সে নিষেধ করেছে।”
 
Both the parties submitted documentary evidence which are documents of title of the suit land irrelevant in a case under section 9 of the Specific Relief Act.
 
In a case, under section 9 of the Specific Relief Act, the plaintiff shall have to prove his possession and dispossession and shall have to file the suit within 6 months from disposse-ssion. A Suit under section 9 of the Specific Relief Act is however an entirely different kind of action. This section a special privilege to persons in possession who take action promptly.
 
In case they are dispossessed, it entitles them to succeed simply by proving (1) that they were in possession, (2) they have been dispossessed by the defendant (s), (3) the dispossession is not in accordance with law and (4) that the dispossession took place within 6 months of the suit. No question of title either of the plaintiff or of the defendant can be raised.
 
In the instant case the plaintiff claimed that the defendants dispossessed on 25.7.2006 and P.Ws. stated the same as above. The plaintiff in his cross examination stated that he was not present at the time of dispossession but P.W. 2 and P.W. 3 stated that P.W. 1 plaintiff of the case was present at the time of dispossession which can not be relied upon since P.W. 1 himself stated that he was not present at the time of dispossession.
 
Now let us see the legal position of the case in the light of the decisions referred by the learned Advocate for the opposite parties.

53 DLR 394, wherein it has been held :
“In the absence of clear findings that the plaintiff was in possession and dispossessed by the defendants within six months of the institution of the suit, the trial Court fell in serious error of law in decreeing the suit for possession.”

57 DLR 315, wherein it has been held:
“In the absence of any clear evidence as to the possession of the plaintiff prior to dispossession by the defendants from the suit land, the trial Court, in decreeing the suit, committed a serious error of law resulting in an error in the decision occasioning a failure of justice.”
 
On perusal of the evidence it appears that P.Ws. contradicted each other on the material points specifically as to presence of plaintiff at the time of dispossession by the defendants.
 
Moreover, the impugned judgment and decree of the court below are well founded in the facts and circumstances of the case and law. Therefore, grounds urged and contentions advanced by the learned advocate for the petitioner are not correct exposition of law and evidence. The decision cited by the learned Advocate for the opposite parties appear to good deal of force.
 
In view of the above facts and circu-mstances it appears that the trial Court on consideration of the evidence, fact and law and by elaborate discussions of the facts and circumstances correctly reached at his finding and dismissed the suit. I do not find that trial Court committed any error of law occasioning failure of justice.
 
In the result, the Rule is discharged. There will be no order as to costs. The order of stay granted earlier by this Court stands vacated.
 
Send down the lower Court records along with copy of the judgment at once.   
 
Ed.