Abdul Gafur and others Vs. Md. Abdur Razzak and others, 62 DLR (AD) (2010) 242

Case No: Civil Appeal No. 122 of 2006

Judge: Surendra Kumar Sinha,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Abdul Jabbar,,

Citation: 62 DLR (AD) (2010) 242

Case Year: 2010

Appellant: Abdul Gafur and others

Respondent: Md. Abdur Razzak and others

Subject: Revisional Jurisdiction,

Delivery Date: 2009-8-11

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Tafazzul Islam J
Md. Abdul Aziz J
SK Sinha J
 
Abdul Gafur and others
.......................Petitioners
Vs.
Md. Abdur Razzak and others
……….........Respondents
 
Judgment
August 19, 2009
 
Code of Civil Procedure (V of 1908)
Section 115
Courts below also concurrently found that the defendants have failed to prove their right, title, interest and possession in the suit lands by adducing oral and documentary evidence. These findings of fact are not immune from interference by the High Court Division in exercise of revisional jurisdiction in the absence of misreading or non-consideration of the evidence on record. The learned judge of the High Court Division has exceeded its jurisdiction in interfering with the concurrent findings of fact, which is liable to be interfered with. …. (12)
 
Cases Referred To-
Ali vs Jainul Abedin Mia 35 DLR (AD) 216; Bangladesh vs AKM Abdul Hye 9 MLR (AD) 82= 56 DLR (AD) 53.
 
Lawyers Involved:
Md. Abdul Jabbar, Advocate instructed by Md. Nawab Ali, Advocate-on-Record—For the Petitioners.
Abdul Wadud Bhuiyan, Senior Advocate instructed by Chowdhury Md. Zahangir, Advocate-on-Record—For respondents.
 
Civil Appeal No. 122 of 2006
(From the judgment and order dated 21st June, 2006 passed by the High Court Division in Civil Revision No. 3001 of 2001).
 
JUDGMENT
 
SK Sinha J.
 
This appeal at the instance of the defendant Nos. 24-36 and 38 is by leave granted by this Court against the judgment and order dated 21st June, 2005 of a Single Bench of the High Court Division in Civil Revision No. 3001 of 2001 making the Rule absolute and reversing those dated 12th April, 2001 of the Additional District Judge, 1st Court, Jhenaidah in Title Appeal No. 79 of 1996 affirming those dated 27th April, 1996 of the Senior Assistant Judge, Kaligonj, Jhenaidah in Title Suit No.14 of 1996 decreeing the suit and allotting saham of 1.94 acres of land out of the suit lands to the plaintiffs and half portion of lands of CS Khatian No.77 to the defendant Nos. 24-36 and 38.
 
2. The respondent Nos. 15-32 instituted the suit for partition on the averments that the suit lands appertain to CS khatian Nos. 18, 77, 133 and 138 belonged to Hossain Biswas, Ebad Ali Mondal, Sobhan Mondal, Khorshed Mondal, Jamat Ali Mondal and Hamid Mondal who were predecessor-in-interest of the plaintiffs-respondents and defendants-appellants. The plaintiffs are in ejmali posses­sion of the suit lands with the defendants during the settlement operation. The plaintiffs entrusted Omed Ali and Karam Ali to get the suit lands recorded in their names jointly with the defendants but they, in utter violation of such direction got the suit lands recorded in the names of the defendants. Despite such wrong recording the plaintiffs have been enjoying the suit lands in ejmali with the defendants without any interference but some times before the date of institution of the suit, the defendants have tried to establish their title in the entire suit lands denying the plaintiffs title.
 
3. Defendant Nos.1-8 and 12 contested the suit by filing a joint written statement. Their case is that they exclusively owned and acquired title by adverse possession of the suit lands. A portion of the suit land appertaining to CS khatian No. 77 was pur­chased in auction by the land lord in Rent Execution Case No. 2100 of 1997, who thereupon settled the said lands with Omed Ali and Samed Ali, the predecessors-in-interest defendants No.1-8 and 12 and since then they had possessed the same and after their death the defendants have been enjoying the said lands by paying rent. The defendants No. 24-36 and 38 who were the heirs of Mobarak Mondal and Ebad Mondal also filed a joint written statement praying for separate saham by way of inheritance denying the claim of the defendant Nos. 1-8 and 12. Their case is that they are owners of the lands in CS khatian No. 77 by way of settlement from the land­lord and have possessed the same.
 
4. The trial Court on consideration of the evi­dence on record found the plaintiffs title and posses­sion in respect of 1.94 acres of land and allotted them saham of the said portion of lands. The trial Court also allotted saham of 8 annas share in the lands in CS khatian No. 77 to the defendant Nos. 24-36 and 38 on the findings inter alia that they were the owners of the lands on the basis of adverse pos­session and certificate sale. The defendant Nos. 1 -8 and 12 being aggrieved by the said judgment and order preferred Title Appeal No. 79 of 1996; the learned Additional District Judge, 1st Court, Jhenaidah who heard the said appeal by judgment and order dated 12th April, 2001 maintained the judgment and decree of the trial Court. The said defendants thereupon moved the High Court Division in Civil Revision No. 3001 of 2000. A Single Bench of the High Court Division upon hear­ing the parties by judgment and order dated 21st June, 2005 made the rule absolute and set aside those of the Courts below. The learned Single Judge observed that both the Courts below committed error of law in failing to consider the material evi­dence led by the defendants with regard to the cer­tificate sale and the rent receipts Exhibit A series and the sale certificate, Exhibit B and that the plaintiffs failed to prove their title but the Courts below with­out considering those exhibits disbelieved 'the defendant's case.
 
5. It is urged on behalf of the appellants that the learned Judge of the High Court Division erred in law in interfering with the concurrent findings of the Courts below in failing to consider that the Court below on a proper appreciation of the evidence on record have arrived at the finding that the defendant Nos. 1-8 and 12 have failed to prove their claim of auction purchase by adducing documentary evi­dence and also without reversing those findings of facts. It was further urged that the learned Judge of the High Court Division fell in an error in failing to consider that Exhibit A series, the rent receipts do not relate to the lands in CS khatian No. 77 and Exhibit B the sale certificate has not been proved and that the said Exhibit B has not acted upon in the absence of delivery of possession.
 
6. We have perused the judgment of the Courts below and heard the learned counsels at length. The trial Court observed that the defendants initially did not mention about the auction sale of the suit lands for arrears of rent in their original written statement but subsequently by way of amendment on 13th August, 1995 introduced those facts. It was further observed that the defendants also filed an applica­tion on 9th March, 1993 stating that the sale certifi­cate was lost and as the volume book was torn up, they failed to procure the certified copy of the same. The trial Court noticed that the defendants subse­quently filed Exhibit B, the certified copy of the sale certificate said have been obtained on 17th May, 1994, but in the said sale certificate nothing was mentioned that the original volume book was torn. In the premises, the defendants ought to have proved Exhibit B by calling for the original volume book but they failed to prove the same. Fazlur Rahman (D.W.1) in course of his cross-examination stated that he had no personal knowledge about the auction purchase and that he made inconsistent statement about the auction sale. The defendants did not adduce any evidence in support of delivery of pos­session. The trial Court held that Mokai Mondal (D.W.7) made inconsistent statements regarding pos­session, inasmuch as, he stated that the auction sale was held about 33 years ago but on the other breath, he stated that it was held about 58 years ago. The trial Court further observed that the Exhibit A series did not relate to the lands in CS khatian No.77 and over and above, those rent receipts were not sup­posed to be kept in the possession of the defendants, which are ante dated documents, that the defendants have miserably failed that the lands in CS khatian have been sold for arrears of rent and that the land lord has purchased the same and thereafter, the land lord has settled the same to the sons of Ali Hossain.
 
7. The Court of appeal below reassessed the evidence on record and held that the defendants failed to produce any documentary evidence in sup­port of the auction sale, that the defendants also failed to prove that the auction purchasers got deliv­ery of possession in pursuance of Rent Execution Case No. 2100 of 1937, that the defendants also failed to prove the settlement of the lands from the land lord by calling the counter fail from the land lord's sherista, that the auction sale was collusive and on the basis of which, the defendants did not acquire any title and that the plaintiffs have acquired title on the basis of taking settlement from the auc­tion purchasers.
 
8. These findings of the Courts below are based upon proper appreciation of the evidence on record. The learned Single Judge of the High Court Division did not reverse those findings and abruptly made the Rule absolute on the reasoning that both the Courts below had committed error of law in not considering and appreciating the material evidence led by the defendants. The learned Single Judge did not point out what material evidence were not con­sidered by the Court of appeal below, other than Exhibits A series and B. In respect of these Exhibits, the Courts below discarded them as collusive docu­ments created by the defendants for the purpose of the suit and this finding of fact is binding on the learned Judge of the High Court Division but the learned Judge believed them as genuine documents without discarding the findings of the Court below and also without assigning any reason whatsoever.
 
9. It was urged on behalf of the respondents that the learned Judge of the High Court Division is per­fectly justified in interfering with the judgments of Courts below, inasmuch as, the Courts below had illegally disbelieved the title of the defendant Nos. 1-8 and 12, in failing to consider that the SA khatian has been prepared in their names and they have also filed rent receipts which can be used or collateral evidence of possession. In support of his contention the learned counsel has referred the cases of Erfan Ali vs Jainul Abedin Mia 35 DLR (AD) 216 and Government of Bangladesh Vs. AKM Abdul Hye 9 MLR (AD) 82=56 DLR (AD) 53.
 
10. In the case of Erfan Ali (Supra) this Court observed "this view is erroneous, for rent receipts, though not documents of title, are important item of evidence of possession and may be used as collater­al evidence of title since possession generally fol­lows title" We do not dispute the statement of law made on interpretation of rent receipts but the facts of his case are quire distinguishable from the facts of that case. In that case the plaintiff claimed that Kali Charan purchased suit plot Nos. 25 and 27, got his name mutated in the land lords sherista and paid rent accordingly, and thereafter, he purchased from the attorney and after purchase, he constructed huts and inducted the defendant No.1 as monthly tenant, In support of his claim he filed some rent receipts. The learned District Judge excluded these rent receipts from consideration taking the view that they did not relate to the suit plots. The High Court Division disagreed with the views and observed that unless the tenants name was recorded in the rent roll by mutation, he could not pay rent, that though plot numbers were not mentioned in the receipts other particulars including exact amount of rent were specifically mentioned there and that this fact estab­lished connection between them and the lot in ques­tion. The High Court Division further observed that no rent was paid by Shashi Bhushan or his wife, the owner of plot No. 25 at any time before the State Acquisition came into force, that thereafter the rent for the said lands were paid by one Pati Ram, the defendant No. 2 son of Kalicharan and since the plaintiffs purchased in 1951, he has been paying rent, the rent receipts were excluded from consider­ation by the lower appellate Court taking the view that these are provisional receipts and that they carry little weight. The Appellate Division discarded this view as erroneous. In this case the trial Court clear­ly found that DW 1 failed to prove the rent receipts Exhibit A series on the reasoning that he had no knowledge about the payment of rent and that these receipts were ante dated created for the purpose of the suit. This finding was affirmed by the Court of
Appeal below but the High Court Division did not consider those findings.
 
11. In the case of AKM Abdul Hye, (Supra) the High Court Division was of the view that the pre­sumption of correctness as to the entry of SA and RS record finally published under section 19(3) in Chapter IV has no basis. The Appellate Division found those observations were not correct and observed that:
 
"presumption so attached under section 144A of the Act to the khatian prepared under section 144 of the Act is rebuttable and the respondents No. 1 and 2 has (sic) rebutted the correctness of the entry made therein as regard the name of Durga Charan Mondal's son and name of Gonesh Chandra Mondal son of Joy Gopal Mondal and, as such, the finding of the High Court Division that the presumption of correctness as regard the entries in the RS kha­tian is not available, is not correct."
 
This case is also distinguishable and has no manner of application in the facts of the given case. There is no presumptive value in SA khatian, and the defendants cannot base their title on the basis of recording of the lands in their names in SA khatian.
 
12. The Courts below concurrently found that the plaintiffs have acquired title and possession in respect of 1.94 acres of land and the defendant Nos. 24-36 and 38 are entitled to 8 annas saham in CS khatian No.77 are based upon proper appreciation of the evidence on record. The Courts below also concurrently found that the defendants have failed to prove their right, title, interest and possession in the suit lands by adducing oral and documentary evidence. These findings of fact are not immune from interference by the High Court Division in exercise of revisional jurisdiction in the absence of misreading or non-consideration of the evidence on record. The High Court Division without any find­ing that the Courts below have found plaintiffs title and possession on a misreading or non-considera­tion of the evidence on record has illegally interfered with the concurrent findings of fact. Therefore, we find that the learned Judge of the High Court Division has exceeded its jurisdiction in interfering with the concurrent findings of fact, which is liable to be interfered with.
 
The appeal is allowed without any order as to costs. The judgment of the High Court Division is set aside and restored those of the Courts below.
 
Ed.