Abdus Samad Talukder and others Vs. Sarkar Mahmud and others, 2 LNJ AD (2013) 139

Case No: Civil Appeal No. 04 of 2002

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Fazlul Karim,,

Citation: 2 LNJ AD (2013) 139

Case Year: 2013

Appellant: Abdus Samad Talukder and others

Respondent: Sarkar Mahmud and others

Delivery Date: 2007-02-13

APPELLATE DIVISION
(CIVIL)
 
Md. Ruhul Amin., J.
Md. Tafazzul Islam, J.

Judgment
13.02.2007
 
Abdus Samad Talukder and another
. . .Appellants.
-Versus-
Sarkar Mahmud and others
. . .Respondents.
 

Registration Act (XVI of 1908)
Section 60
Transfer of Property Act (IV of 1882)
Section 107
Code of Civil Procedure (V of 1908)
Section 115(1)
The plaintiffs could not prove their title and possession and on the other hand the defendants have been able to prove their title and possession in the land in suit and that the registered kabuliyats of the year 1954, the dakhilas granted by Abdul Gafur Talukder, the preparation of R.S. Khatian in the name of the defendants and the payment of rents by the defendants to the Government Acquired Estate by Dakhilas, Ext. Ka series, go to show that the defendants are in possession of the suit land and they also adduced oral evidence in support of their possession. The High Court Division also found that there being no misreading and non-consideration of material evidence on record and misconstruction of the document and the conclusion arrived at by the appellate Court being based on the evidence on record, the appellate Court did not commit any error of law which calls for interference. . . .(6)
 
For the Appellants: Mr. Md. Fazlul Karim, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For the Respondent: Ex-parte.

Civil Appeal No. 04 of 2002
 
JUDGMENT
MD. TAFAZZUL ISLAM, J:

This appeal by leave is directed against the judgment and order passed on 23.6.1997 in Civil Revision No.908 of 1991 by a Single Bench of the High Court Division discharging the Rule obtained against the judgment and decree dated 20.10.1990 of the learned Subordinate Judge (now Joint District Judge), Kurigram passed in Other Appeal No.78 of 1987 setting aside those of dated 30.7.1987 by the learned Assistant Judge, Fulbari, in Other Suit No. 37 of 1986 decreeing the suit.

The appellants, as plaintiffs, filed the above Other Suit No.37 of 1986 for declaration of their title in the suit land on the averments that the suit land originally belonged Moharaja Jogodipendra Narayan Bhup Bahadur and Abdul Hafez Ahmed Talukder, their uncle, in the year 1351 B.S, took settlement of the same at a rental of Taka 14.50 and since then Abdul Hafiz Ahmed Talukder possessed the suit land on his own right and after his death the plaintiffs, as his heirs, had been possessing the suit land; due to the prolonged illness of the plaintiff no. 1, who was the tadbirker on behalf of the all plaintiffs, the defendants in collusion with the staffs of the Settlement Office, in the R.S. Record, fraudulently recorded 3.22 acres in the name of the defendants 1-5 arid 3.23 acres in the name of defendants 6-8 which clouded the title of the plaintiffs in the suit land and hence the suit.

The defendants 3-7 filed written statement, contending that the suit land belonged to Abdul Hafez Ahmed Talukder who died leaving his own brother Abdul Gafur Talukder, the father of the plaintiffs, and from Abdul Gafur Talukder the defendant Nos.1-5 took settlement of 3.22 acres and defendant 6-8 took settlement of 3.23 acres of land out of the suit land and then the defendant No.l executed kabuliyat on behalf of the defendant Nos.1-5 and the defendant No. 6 executed kabuliyat on behalf of defendant Nos. 6-8 both in favour of Abdul Gafur Talukdar and both the kabuliyats were executed and registered on 5.4.54 and since then they have been possessing the suit land and the plaintiffs out of greed filed the suit.

The learned Assistant Judge, Fulbari, after hearing, decreed the suit. On appeal the learned Subordinate Judge (Now Joint District Judge) Kurigram allowed the appeal. Thereafter the petitioners moved the High Court Division and obtained Rule in Civil Revision No. 908 of 1991 and after hearing the High Court Division discharged the Rule.

The learned counsel for the appellants submitted that the High Court Division fell in error in not considering that the defendants could not produce any witness or documents to prove that Abdul Gafur Talukder, did accept the kabuliyats, Ext. Uma, on which the defendants relied and further the plaintiffs also proved their possession in the suit land and on consideration of the materials on record the trial court duly found that the entry in the R.S record is wrong and there is also no evidence to prove that Abdul Gafur Talukdar ever accepted the kabuliyats executed by the defendants but the appellate Court, without reversing the material findings of the trial court erroneously allowed the appeal holding that the defendants acquired title and possession in the land in suit on the basis of kabuliyat Ext. Uma and dakhiles Exts. Ga(2) and Ga(5). The learned counsel further submits that the High Court Division also failed to consider that inspite of clear assertion of the plaintiffs that Ext. Urna and Exts.Ga(2) arid Ga(5) are fabricated and false those exhibits were not sent to experts for comparison of the hand writings of Abdul Gafur Talukder specially when Jashimuddin and Hori, the defendant Nos.l and 6 respectively in their deposition stated that they were present at the house of Abdul Gafur Talukder on 22 Choitra, 1360 B.S at 10.11 AM while he granted those dakhilas but the contents of the certified copies of the kabuliyats show that they at the same date and time were present at Calsonirhat Sub-Registry Office for registration of the kabuliyat and the distance between the two places is about 10 to 12 miles.

As it appears the High Court Division found that the appellate Court allowed the appeal holding that (a) even if for arguments sake it is conceded that the defendants could not give satisfactory explanation to the points raised by the plaintiffs but that would not improve the case of the plaintiffs because it is the cardinal principle of law that the plaintiff is to prove his own case and he must not rely on the weakness or defects of the defendants case (b) the plaintiffs failed to adduce any reliable documentary or oral evidence in support of their contention that the kabuliyat dated 5.4.1954 executed by the defendants in favour of Abdul Gafur are not genuine documents or that the same was not acted upon, (c) the R.S. Khatian was prepared in the names of the defendants (d) the defendants paid rent to Abdul Gafur and subsequently to the Government Acquired Estate which show that the defendants have been possessing the suit land (e) if the evidence, both documentary and oral, adduced by the parties are weighed it will be seen that the evidence adduced by the defendants stands on a better footing, (f) the trial Court only discussed the evidence of P.Ws. without discussing the evidence of the D.Ws. and did not consider the registered kabuliyats in their properperspective. The High Court Division further found that though the appellate Court did not elaborately discuss the evidence adduced by the parties in support of their respective cases but gave specific finding that the plaintiffs could not prove their title and possession and on the other hand the defendants have been able to prove their title and possession in the land in suit and that the registered kabuliyats of the year 1954, the dakhilas granted by Abdul Gafur Talukder, the preparation of R.S. Khatian in the name of the defendants and the payment of rents by the defendants to the Government Acquired Estate by Dakhilas, Ext. Ka series, go to show that the defendants are in possession of the suit land and they also adduced oral evidence in support of their possession. The High Court Division also found that there being no misreading and non-consideration of material evidence on record and misconstruction of the document and the conclusion arrived at by the appellate Court being based on the evidence on record, the appellate Court did not commit any error of law which calls for interference.

We are of the view that the High Court Division on proper consideration of the evidence and materials on record arrived at a correct decision. The learned counsel could not point at any illegality or infirmity in the decision of the High Court Division so as to call for interference.

The appeal is dismissed with cost at all stages.

Ed.