Case No: Civil Appeal No. 3 of 1983
Judge: F.K.M.A. Munim,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Rafique-ul-Huq,Mr. Abdul Wadud Bhuiyan,Mr. M.H. Khondkar,,
Citation: 36 DLR (AD) (1984) 261
Case Year: 1984
Appellant: Abdul Kader and others
Respondent: A. K. Noor Mohammad and others
Subject: Land Law, Property Law,
Delivery Date: 1984-1-10
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
Abdul Kader and others
A. K. Noor Mohammad and others
January 10, 1984
The Trial Court as well as the High Court Division found that the plaintiff appellants were aware of the fact that the suit land has been acquisitioned long before by the Government for accommodation of government employees. No paper whatsoever has been produced to show that the land has been de-requisitioned. No claim of hostile title was ever made before in the various civil suits filed earlier. In such circumstance it cannot be said that the plaintiff appellants have acquired title in the suit premises by adverse possession……..(16)
The appellants entered into the premises with the permission of the owner who allowed it to be requisitioned by the government. The property is still under acquisition. The suit is for the declaration that the impugned compromise decree is void but not for declaration of plaintiff’s title by adverse possession. So the plaintiff is not entitled to any relief.
Cases Referred to-
Pandit Ram Chander vs. Pandit Maharaj, AIR 1939 All 611; Mrs. June Ferguson vs. Ameenur Rasheed (1973) 22 DLR 1; Manjural Hoque vs. Newajan Bibi (1955-56) 60 714; Aditya Kumar Ray vs. Dhirendra Nath (1948-49) 53 CWN 879; Sadak Ali vs. Suruj Ali (1955) 7 DLR 94; Ejaz Ali Qidwai vs. Special Manager, Court of Wards AIR 1935 PC 53; Munnalal vs. Mst. Kashibai (1916-17) 51 CWN 175; Hafiz Md. Fateh vs. Sir Swarup Chand (1947) 52 CWN 182.
M.H. Khondker, Senior Advocate instructed by Abu Backkar, Advocate-on-Record—For the Appellants.
Khondker Mahbuddin Ahmed, Senior Advocate, instructed by Zinnur Ahmed, Advocate-on-Record—For the respondent No. 1.
Rafique-ul Huq, Senior Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record- For Respondent Nos. 3-5.
A.W. Bhuiyan, Additional Attorney General, instructed by B Hossain, Advocate-on-Record —For Respondent Nos. 6-8.
Civil Appeal No. 3 of 1983.
(Form the Judgment and Decree dated 11 8.82 passed by the High Court Division, in First Appeal No. 32 of 1978.)
Fazle Munim CJ.
This appeal arises from First Appeal No. 32 of 1974 passed by the High Court Division on 11 August, 1982.
Appellants instituted Title Suit No. 36 of 1975 in the 4th Court of Subordinate Judge, Dhaka and was renumbered as Title Suit No. 1 of 1978 after being transferred to 5th Court of the Subordinate Judge, Dhaka. Appellants prayed for declaration of their title and possession to the suit properties and also for declaration that the compromise decree obtained in Title Suit No. 107 of 1966 in the 4th court of Subordinate Judge, Dhaka on 20 August, 1966 was fraudulent, void and not binding upon them. Prayer for permanent injunction restraining the defendants from dispossessing the appellants from the suit premises was also made. Facts stated in the plaint are that the suit premises belonged to one Noor Mohammad Bepari who gave permission to the plaintiff appellants to enter into and live in the suit premises. While in possession the plaintiff-appellants entered into an agreement with the owner is the Bepari for selling title suit premises to them at a price of Tk. 20,000/-. On 20 September, 1950 a bainapatra was executed and on the same day 30 amount of Tk. 18,000/- was paid to Noor Mohammad Bepari as earnest money. The owner was to execute the sale deed within 3 months from the date of agreement. Plaintiff-appellants came to know that suit property was requisitioned by the Government of East Pakistan as it then was but it could not lake possession of the suit premises by evicting the plaintiff appellants there from. Noor Mohammad Bepari did not, however perform his part of the contract in spite of tender of the balance consideration money and requests of the plaintiff appellants. No suit for specific performance within time could, therefore, be filed due to the dilatory tactics of the owner to perform his part of the contract Plaintiff-appellants' possession extended over a period of more than 12 years. In 1973 defendant No. 6, the Government of Bangladesh issued a notice upon the plaintiff-appellants to vacate the premises who instituted Title Suit No. 47 of 1973 in the 1st Court of Munsif, Dhaka for permanent injunction restraining the Government from interfering with the peaceful possession of the plaintiffs. On 27th February, 1975 they, however, withdrew the suit and filed the present suit.
2. Their further case was that defendant Nos. 1 and 2 tiled Title Suit No. 107 of 1966 in the 4th court of Subordinate Judge, Dhaka against one Syed Abdul Latif defendant No. 12 and another and obtained a compromise decree in collusion with each other on 22 August, 1966. The predecessor of defendant Nos. 3,5 filed Title Suit No. 90 of 1967 in the same court for cancellation of the compromise decree but the plaint was rejected for non-payment of court fee. Defendant No. 1 filed Title Suit No. 56 of 1967 in the said court against the Government but withdrew the same. The predecessor of defendant Nos. 3,5 also filed title Suit No. 105 of 1974 in the same court for cancellation of the compromise decree dated 23.8.66 but the same abated. The cause of action of the suit arose on 1st March, 1973 when the plaintiff-appellants received a notice of eviction from defendant No. 6 and also on October 31, 1974 when defendant No 3 threatened them with dispossession. By filing three different written statements, three sets of defendants, namely, defendant No. 1, defendants Nos. 3-5 and defendant No. 6 contested the suit. The case of defendant No. 1 was that Noor Mohammad Bepari settled the suit property to Syed Abdul Latif, defendant No. 12 who, in 1951, settled it with him and his sister, defendant No. 2 by executing an unregistered amalnama on receiving a selami of Tk. 40,000/-. On the basis of compromise decree obtained by him in Title Suit No. 107 of 1966 defendant No. 1 got his name mutated in the S. A. record. The predecessor of defendant Nos. 3-5 filed Title Suit No. 19 of 1967 for canceling the compromise decree, but the suit was dismissed. Plaintiff No 2 and two others filed Title Suit No. 82 of 1968 against defendant Nos-1 and 2 predecessors of defendant Nos. 3-5 and defendant No 6 but the same was dismissed for default, the predecessor of defendant Nos. 3-5 filed Title Suit No. 307 of 1970 which was also dismissed for default. Plaintiffs filed Suit No. 47 of 1937 in the 1st court of Munsif Dhaka against the defendants but ultimately withdrew the same. The plaintiffs also filed Title Suit No. 622 of 1973 against the same but this suit was also withdrawn. The predecessor of defendant Nos. 3-5 filed Title Suit No 104 of 1974 for cancellation of the compromise decree dated August 23, 1966 but it abated. Miscellaneous case filed for setting aside the order of abatement was also dismissed. The present suit has been filed by the plaintiff appellants in collusion with defendant Nos. 3-5. The case of defendant Nos. 3-5 is that Noor Mohammad Bepari transferred the suit premises in favor of Nazrul Islam and Aminul Islam, defendant Nos. 10 and 11, who transferred their interest in the suit property to them on 27 October 1974 by executing a kabala. Defendant No. 6, the Government of Bangladesh, contends that the suit premises was requisitioned on 23.7.47 by the then Government of Bengal and the same was allotted to Class IV employees of P.W.D who were in possession On receiving a notice of eviction plaintiff-appellants who were in unauthorized occupation of a portion of the house instituted Title Suit No. 47 of 1973 which they subsequently withdrew. The suit premises has been recorded in the name of defendant Nos. 1 and 2, in the record of the Deputy Commissioner, Dhaka. Defendant Nos. 10 and 11 challenged the compromise decree in Title Suit No. 105 of 1974 but the same abated. Plaintiff-appellants were in unauthorized occupation of the suit premises and are, therefore, liable to be evicted under section 12A of the Emergency Requisition of Property Act. On March 14, 1978 the suit was dismissed by the learned Subordinate Judge, Dhaka. Plaintiff-appellants preferred First Appeal No. 32 of 1978 before the High Court Division. Cross-objections were filed by defendant no. 1 and defendant Nos. 3-5. On 11 August, 1982 the High Court Division dismissed the appeal and affirmed the judgment and decree of the trial court "with modification to the effect that the findings of the court below so far as the claim of the defendant No 1 and defendants Nos. 3-5 are concerned will be of no legal effect are set aside".
3. Being aggrieved plaintiff-appellants moved this Court and obtain leave to consider whether the learned judges of the High Court Division had incorrectly applied the law of part performance as contained in section 53A of the Transfer of Property Act.
4. Mr. M. H. Khondker, Counsel for the plaintiff-appellants, while challenging the correctness of the decision of the High Court Division and also that of the trial court concentrated his efforts mainly on two points, namely (1) appellants being in possession of the suit premises in part performance of the contract is entitled to the decree; and (2) appellants' possession being adverse has conferred upon him title to the suit premises.
5. In order to substantiate his contentions the learned Counsel tried his utmost to prove that the bainapatra, Ext. 1, was a genuine document. This document has been considered by learned Judges of the High Court Division and the trial court at home great length. In this connection the history of possession of the suit premises by the Government after it was requisitioned in 1947, the continued litigation by the appellants as well as the different sets of defendants since 1966, the oral and documentary evidence relating to the respective claim of each of these parties in those cases and the results thereof were fully considered by the Courts. Mr. Khondker referred to grounds Nos. 7 and 9 on the application of section 53A of the Transfer of Property Act to the facts and circumstances of the case. These grounds are as follows:
6. A part from invoking the doctrine of part performance as embodied in the aforesaid section, appellant’s Counsel vehemently argued that the appellants’ prayer declaration of title in the suit on the basis of adverse possession should have been granted. He asserted that the appellants’ possession over 12 years preceding the filing of the suit has been found by the Court.
7. Before dealing with the contentions raised by the learned Counsel it may be useful to refer to the findings arrived at by the trial court which has been upheld by the High Court Division. Ext. 1, the bainapatra, which was alleged to have been executed by Noor Mohammad Bepari, owner of the suit premise, on 20.9.50 for settling it for a consideration of Tk. 20,000/- has been found to be a spurious document. This document recites that on receiving Tk. 18,000/- as earnest money Noor Mohammad Bepari promised to execute and register the sale deed within 3 months after obtaining income tax clearance certificate. In so far as no suit has ever been filled by the appellants for specific performance of contract and there has been no mention to the bainapatra in the several civil suits previously filled by the appellants in respect of the suit premises and unsatisfactory evidence regarding its execution by Noor Mohammad Bepari and interpolations as to the amount the trial court found that the bainapatra was "created for the purpose of this suit only to get the benefit of section 53A of the Transfer of Property Act." It was, therefore, found not to be a genuine document. These civil suits are: Title Suit No. 182 of 1968 filled by the plaintiff No. 2 and others in the 1st Court of Munsif, Dhaka for permanent injunction in respect of the suit premises. Plaintiff Nos. 1, 2, 3, 4 and 7-9 filed Titled Suit No. 3o7 of 1979 in the 1st court of Munsif, Dhaka for permanent injunction. These-two suits were dismissed for default. Plaintiff No. 7 filed Titled Suit No. 622 of 1974 in the 1st court of Munsif, Dhaka. This suit was withdrawn with opportunity to sue afresh.
8. As to the appellants claim regarding the genuineness of the bainapatra, Mr. Khondker submitted that since there has been no challenge to the genuineness of the signature of Noor Mohammad Bepari on the document the finding arrived at by the Courts were wrong. Mr. Khondker has referred to a few cases in support of his contentions as to part performance of the contract. One who places reliance on the doctrine of part performance succeeds only where one has been able to prove a contract. This is clear from the provisions of the section itself which is as follows:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
9. Mr. Khondker next contend that since the appellants have been in possession of the suit premises since 1950, asserting their independent title, the Courts should have found that they acquired title to the suit premises by adverse possession. In support, the learned Counsel referred to Ext. 2, the identity card issued by the Camp-in-charge. Mohajereen Relief Camp, Dhaka in favour of Sk. Azhar Ali showing that he was living in the suit premises and that he arrived in East Pakistan on 18.3.50, Ext, 3 series which are electric bills paid by plaintiff No. 2 during the period 1974 to 1977. Ext. 4 series, municipal tax receipts showing that plaintiff No. 2 have been paying municipal rents for the suits premises through Marfardars since 1975, Ext- 5 series show that plaintiff No. 4 paid water and sewerage charges for the suit premises in 1968 learned Counsel also referred to a few other Exhibits to show that the appellants have been living in the suit premises. Of these Ext. 6 series are of year 1967 and 1968. Ext. 7 is dated 10.9.75, Ext. 10 is dated 15.11.62, Ext. 10 (a) is dated 7.3.63. Besides, he referred also to the evidence of P Ws. 3, 4, 5-7 and 9 in support of the appellants' possession.
10. It however, appears that the suit premises was requisitioned by the Government on 23 July 1947 and was allotted to employees of Central P.W.D for the purposes of residential accommodation. It also appears that Noor Mohammad Bepari the owner of the premises, applied to the authority for enhancement of rent of the suit premises on 10.4.48. A formal agreement dated 23.2.51, Ext. 8, was made between him and the Estate Officer, C & B Department, Dhaka. The employees to whom allotment was made occupied the suit premises on and from 1.9.47. The fact that some Government employees were in possession of a portion of the suit premises was admitted by Sk Azhar Ali, plaintiff No. 2, On considering these documentary evidence and the perfunctory manner in which the appellants have filed civil suits one after another and either allowed them to be dismissed for default or withdrew them, the trial court found that the appellants could not establish adverse possession of the suit premises by them. As to the motive for filing the civil suits the trial court observed as follow:
11. Some cases on the doctrine of part performance may now be considered. In Pandit Ram Chander Vs. Pandit Maharaj Kunwar AIR. 1939 All. 611 facts were that the plaintiff was a lessee of certain properties under a deed of lessee which was duly registered but was not signed by either the lassoer or lessee in accordance with the provisions of Section 107. Nevertheless, plaintiff had obtained possession of the subjects leased. While the plaintiff was thus enjoying the possession defendants demolished part of the property, Plaintiff brought a suit for injunction restraining the defendant from interfering with any of the rights of the plaintiff as lessee of those properties. It was contended by the plaintiff that as he had entered into possession of the properties in terms of the lease executed in his favour and was willing to perform his part of the contract of the lease though it was not entitled to eject him by process of law or otherwise. Upon a question whether plaintiff could rely upon the provisions of Section 53A, it was held that:
12. In the instant case before us facts are distinguishable inasmuch as the plaintiff-appellants here did not bring this suit to protect their possession as against Noor Mohammad who, according to them, entered into the agreement for sale on 20.9.50 but filed the suit for declaration that the compromise decree obtained by some of the defendants in Title Suit No. 107 of 1966 was fraudulently obtained and, therefore, void.
13. In Mrs. June Ferguson Vs. Ameenur Rasheed Chaudhury (1973) 25 DLR 1, the learned Judges of the Dhaka High Court had to consider the scope of the provisions of section 53 A of the Transfer of Property Act in a suit for possession of immovable property. Here, the question arose whether the plaintiff in defending his possession of the property can successfully invoke such provisions, the contention of the defendant being that the provisions of the aforesaid section in such a suit were available only to defendant and not to a plaintiff. It was held that such a suit could not be said to be not maintainable on the ground that the benefit of section 53A was not available to the plaintiff.
14. The principle laid down in this case is also not available to the plaintiff-appellants as the suit was not against the original owner of the suit premises. Moreover, as it appears from the facts of this case, the plaintiff-appellant did not succeed in proving the alleged agreement between him and the owner of the suit premises. In view of the finding by the High Court Division as well as the trial court that the agreement for sale, Ext. 1, was not a genuine document the plaintiff appellant's possession is not referable to it.
15. In another case cited by the learned Counsel for the appellants it was held that the registration of a contract to transfer immovable property is not required in law and is admissible in evidence to prove the contract to transfer or the terms thereof for the purposes of section 53A of the Transfer of Property Act. As the plaintiff-appellant's possession of the suit premises is not referable to the contract they were not entitled to the benefit of section 53A of the Transfer of Property Act, vide, Manjural Hoque Vs. Newajan Bibi (1955-56) 60 CWN 714.
16. As regards the plaintiff-appellants, claim of title to the property on the basis of adverse possession for 12 years preceding the institution of the suit, the finding of the trial court as well as High Court Division is that they were aware that the suit premises was requisitioned by the Government for the accommodation of Government employees. They could not produce any papers whatsoever to show that the same had been derequisitioned and that they had been possessing the suit property since then claiming hostile title Noor Mohammed Bepari who is alleged to have executed the bainapatra died some time in 1656 long before the institution of the present suit by the plaintiff appellants. No claim of hostile title was ever made by them, nor in the various civil suits filed before the present one out of which this appeal has arisen any mention regarding the bainapatra was made. In such circumstances it cannot be said that the plaintiff-appellants have acquired title to the suit premises by adverse possession.
17. Yet their learned Counsel, Mr. Khondker, submitted that plaintiff appellants have been able to prove their adverse possession for over 12 years prior in the filing of the present suit, though he failed to show against whom the assertion of hostile title was made and when or whether such assertion was ever made. The only thing which appears from the conduct of the plaintiff-appellants in that whenever any notice was served by the Government upon them to vacate the suit premises they rushed to the Court and prayed for injunction but, as already observed, in none of those suits they ever claimed hostile title on the basis of their alleged adverse possession nor referred to the bainapatra. In addition, it appears from Ext U that some of the plaintiff-appellants submitted a joint application for allotment of the suit premises.
18. From these facts and circumstances which have been fully discussed and considered by the trial court and the High Court Division, it appears that the plaintiff appellants are not entitled to any declaration of their title by adverse possession for over 12 years. The principles defining the acquisition of title by adverse possession have been considered in numerous cases, but judging by the principles enunciated therein, the plaintiff-appellants case for adverse possession does not seem to have been made out.
19. In Aditya Kumar Ray vs. Dhirendra Nath Mondal, (1948-49) 53 CWN 879, principles regarding adverse possession have been referred to the facts concerned show when the Possession of the mortgagor’s tenant became adverse to the mortgagee. It became adverse to the mortgagee when he was entitled to possession after purchasing the property in execution of the mortgage-decree, and the suit having been brought within 12 years, there from was within time. Facts of this case are, therefore, distinguishable from those of the present case. However, in referring to the term "adverse possession" the court quoted with approval the following observations of Sanderson CJ in another case, "the term adverse possession' implies that the person against whom adverse possession is exercised, is a person who is entitled to demand possession at the moment adverse possession begins.
20. Sadat Ali vs. Suruj Ali, (1955) 7 DLR 94, a Single Bench of the Dhaka High Court in considering the provisions of Articles 28 and 142 of the Limitation Act, noted the differences between the two sections. It was observed that:
Further, it was observed-
21. In Ejaz Ali Qidwai vs. Special Manager, Court of Wards, Balrampur Estate, AIR 1935 PC 53, the Judicial Committee of the Privy Council, while referring to the principle of law regarding adverse possession, observed that:
In Munnalal, minor vs. Mst. Kashibai (1916-17) 51 CWN 175, the Privy Council observed that:
In another case, Hafiz Mohammed Fateh Nasib vs. Sir Swarup Chand Hukum Chand, (1947) 52 CWN 382. The Judicial Committee of the Privy Council referred to principles regarding adverse possession:
Further, it was observed:
''The correct test to be applied in a case of this nature is, whether the claimant exercised such dominion over the property as to justify the inference that he was in possession of the whole. It is not necessary for him to prove that he was in physical possession of every square inch”.
22. In the present case there is no evidence to show that the plaintiff-appellants ever claimed any title to the suit property on adverse possession, nor when their possession became hostile to Noor Mohammad Bepari, the owner of the suit property. Also, they never asserted hostile title against him. On the contrary, it is admitted by the appellants that they entered the suit premises with the permission of the owner who, however, allowed it be requisitioned by the government for the accommodation of government employees. From the government papers produced by the learned Additional Attorney General, it is seen that the suit premises are still under requisition. Moreover, the present suit is not for declaration of plaintiffs' title on adverse possession, but for the declaration that the compromise decree obtained by some of the respondents in Title Suit No. 107 of 1966 in 4th Court of Subordinate Judge, Dhaka is fraudulent, void and not binding upon them. In this suit, therefore, plaintiff-appellants are not entitled to any relieves whatsoever.
None of the three sets of defendants namely, defendant Nos. 1 and 2, defendant Nos. 3-5 and defendant No. 6 is entitled to any relief.
The appeal is dismissed. There will be no order as to costs.