Aboni Kumar Deb and others Vs. Hira Lal Dey and others, 2 LNJ (2013) 356

Case No: First Appeal No. 249 of 2008

Judge: A. K. M. Shahidul Huq,

Court: High Court Division,,

Advocate: Md. Abdul Quayum,Mr. Khijir Ahmed,Mr. Ali Reza,,

Citation: 2 LNJ (2013) 356

Case Year: 2013

Appellant: Aboni Kumar Deb and others

Respondent: Hira Lal Dey and others

Subject: Limitation,

Delivery Date: 2013-05-16

HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Sharif Uddin Chaklader, J.
and
A.K.M. Shahidul Huq, J.

Judgment
16.05.2013
 
Aboni Kumar Deb and others
....Plaintiff-Appellants
-Vs-
Hira Lal Dey  and others
. . . Defendants-Respondents
 

Limitation Act (IX of 1908)
Article 142
The uninterrupted adverse and hostile possession of the defendant side for a period of over 12 years from the date of 1.7.1952 the defendant side has acquired title in the disputed house by adverse possession. . . .(18)
 
Salma Khatun and others Vs. Zilla Parishad, Chittagong represented by its Secretary and another, 51 DLR 257; Mrs. Hamida Banu Vs. AFM Naziruddin, 11 BLD 211; Sree Santipada Datta being dead his heirs Aranangsha Datta and others Vs. Satish Chandra Das and others, 12 BLT 27 ref.
 
Mr.  Khijir Ahmed Chowdhury
. . .For Plaintiff- Appellant

Mr. Md. Abdul Quayum with
Mr.  Md. Ali Reza
. . .For the Defendant –Respondent

First Appeal No. 249 of 2008
 
JUDGMENT
A.K.M. Shahidul Huq, J:
 
This appeal at the instance of plaintiff is directed against the judgment and decree dated 29.05.2008 passed by the learned Joint District Judge, 3rd Court, Sylhet in Title Suit No. 32 of 2006.
 
The short facts for disposal of plaintiff’s case is that, the schedule of the plaint was originally belonged to Padma Lochon Deb who died leaving behind two sons namely Pabitra Chandan Deb. and Ram Charan Deb. Thereafter Ram Charan died leaving behind his only son Raj Kumar Deb and Raj Kumar died unmarried leaving behind his full paternal uncle Pabitra Charan Deb. The record of right was prepared in the name of Pabitra Charan Deb and Raj Kumar Deb. Raj Kumar Deb also left his sister’s son Jahnabi Charan Deb. Thereafter, Jahnabi Charan Deb died leaving behind 3 sons namely Umesh Chandra Deb. Omorendra Kumar Deb and Abani Kumar  Deb. Umesh Chandra died leaving behind his wife  Anzoli Rani Deb and 2 sons Ajoy Kumar Deb and Bidhan Kumar Deb. The said Amorendra Kumar Deb died leaving behind his wife Nilima Rani Deb and 4 sons Moloy Kumar Deb. Prithesh Kumar Deb.Rijush Kumar Deb and Bikash Kumar Deb. Thereafter Pijush Kumar Deb died unmarried leaving his mother Nilima Rani Deb and 3 brothers  Moloy  Kumar, Deb Pritish Kumar Deb  and Bikash Kumar Deb. In  this way the plaintiffs got the suits land. Thereafter separate Khatian No. 1119 was opened in their names and rent was also realised. The finally published Khataindid not contain the names of the predecessors of the present defendants as licensee and this fact is admitted by the defendants on filing the application dated 27.08.02 to the Assistant Commissioner (Land, Sylhet for consideration of the order of mutation in favour of the plaintiffs. The defendants as well as their predecessors never denied the title of the plaintiffs. The possession of the defendants legally construed to be the possession of the plaintiffs or their predecessors. The defendants have no locustandi to challenge the order passed in the mutation case in favour of the plaintiff. The objection filed in the mutation case  No.408/01-02 before the Assistant Commissioner (land) Sadar, Shlhet dated  13.08.01 under misconception of law  and the subsequent order dated 27.08.02 obtained by the defendants in the mutation case tentamounts to hostile attitude of the licensee defendants against the plaintiffs. The defendants have no title in the land except a licensee.  Pabitra Chandra Deb Raj Kumar Deb, never proposed to sale the disputed property to Gojendra Kumar Deb. He did not realiseTk. 100.00 from Pabitra Charan Deb and Raj Kumar Deb on 01.07.1952 A.D. Accordingly in the written statement of Title Suit No. 32 of 2006 Gojendra Kumar Deb never paid of Tk. 60.00 to Pabitra Charan Deb on 02.08.52 or paid Tk. 40.00 to Raj Kumar Deb on 05.09.52 A.D. Raj Kumar Deb and Pabitra Kumar Deb did not  execute any receipts on 01.07.52. The said receipt is forged. In the written statement the defendants of T.S. 32 of 2006 categorically denied the case of the plaintiff-side. In the circumstances they prayed for a  decree in T.S. No. 177  of 2006 and prayed dismissal of T.S. No. 32 of 2006.
 
On the other hand, the case of the defendant are that the suit that the disputed property described in the schedule of the plaint of the above suit was originally owned by Pabitra Charan Deb and Raj Kumar Deb. They proposed to sale the property when the predecessor-in-interest of the plaintiff Gojendra Kumar Deb accepted the proposal and accordingly  price of the land was settled of Tk. 200.00. Both the parties agreed to realise money by instalments. Then Tk. 100.00 was realised on 1.7.52 and after receiving money by Raj Kumar Deb a receipt was given to the purchaser where both the owners put their signatures. Then Tk. 60.00 was paid on 02.08.1952 and the rest of Tk. 40.00 was realised on  05.09.1952 and they also gave receipt to the purchaser. Thereafter  the possession of the land was handed over to the predecessor-in-interest a receipt of acknowle-dging the money from the plaintiffs. There was an agreement between the parties of executing and registering  kabala deed in favour of the plaintiff-side. Finally the defendant  Nos. 1-2 did not execute and register the same. The plaintiff of T.S. No. 32/06 have been possessing the land for more than 50 years by realising Government Taxes. They have got mutated their names in respect of disputed  land. The defendants of  T.S. No. 32/06 have collusively mutated their names  in respect of  suit land. In the circumstances,  they prayed for dismissal of T.S. 177/06 and also prayed a decree in T.S. No. 32/06.
 
After perusing the pleadings of both the sides, following issues are framed for the ends of justice.
  1. Whether T.S. No. 177/06 and T.S. No. 32/06 are maintainable in their present form ?
  2. Whether plaintiffs of both the suits have title and possession over the disputed land?
  3. Whether Tk.200.00 was settled as price of the land dscribed in the plaint of T.S. No. 32/06?
  4. Whether both the plaintiffs are entitled to get relief as prayed for.
 
The plaintiffs examined 4 witnesses and submitted some documents which have been marked as Exts. No. 1-9. On the other hand the defendants side examined 5 witnesses before the Court and submitted documents of their side are marked as Exts. Kha – Tha.  
 
Mr. Abdul Baset Majumder  the learned Advocate appearing for the appellant  submits that the judgment and decree passed by the learned Joint District Judge, 3rd Court, Sylhet is not justified by facts and circumstances of the case as  such liable to be set aside and the judgment and decree of the trial court is against the materials and evidence on record which caused failure of justice and the issues framed ought to have been decided in favour of the appellants and thus judgment and decree is liable to be set –aside.
 
The learned Advocate appearing for the appellant further submits that the plaintiffs failed to prove their title over the suit land on the basis of purchase, conversely the defendants have  been able to  prove their title over the suit land and as such the trial Court was obligated to dismiss the suit and decree the suit filed by the defendant appellant but the trial   court failed to consider those vital aspects of the case and erroneously decreed the suit filed by the plaintiffs which caused failure of justice and the plaintiffs relicense  under the defendant in respect of the suit land, their possession cannot be adverse against the defendant but the trial court without appreciating that vital fact erroneously decreed the suit which caused failure of justice.
 
The learned Advocate appearing for the appellant also submits that the plaintiffs failed to produce any purchased deed in support of their purported purchase and also payment of money for alleged purchase in spite of that the trial court decreed the suit which caused serious miscarriage of justice.
 
The learned Advocate appearing for the appellant then submits that mere existence of structure and residing therein does not prove that the plaintiffs have title and possession on the basis of title over the suit land but the trial Court without considering those fact erroneou-sly decreed the suit which caused failure of justice and the trial Court without considering the attending facts and circumstance of the case relied only the possession of the plaintiffs over the suit land. In fact the possession of the plaintiffs are on the basis of license granted by the plaintiff and as such the trial Court ought to have dismiss the suit filed by the plaintiffs and decreed the suit filed by the defendant.
 
The learned Advocate appearing for the appellant further submits that the ingredient of adverse possession as claimed by the plaintiffs re conspicuously absent in the present suit but the trial Court without considering those facts decreed the suit which caused serious miscarriage of justice. The learned Advocate appearing for the appellant lastly submits that as a licensee the plaintiffs on the basis of their possession availed the opportunity of having connection of electricity and gas line which does not signify that they have title over the suit land but the trial court relying upon those factors erroneously decreed the suit which caused failure of justice and the trial Court failed to apply his judicial mind while disposing the issues which caused serious miscarriage of justice. So in any view of the matter the impugned judgment and decree passed by the trial Court is liable to be set aside.  The learned Advocate appearing for the appellant in course of his submission cited the case of Salma Khatun and others -Vs- Zilla parishad, Chittagong represented by its Secretary and another reported in 51 D.L.R page 257.
 
On the other hand Mr. Abdul Quayum with Mr. Md. Ali Reza the learned Advocate appearing for the respondent submit that suit property was originally owned by Pabitra Charan Deb and Raj Kumar Deb. They proposed to sale the property when the predecessor-in-interest of the plaintiff Gojendra Kumar Deb accepted the proposal and accordingly price of the land was settled at Tk. 200.00. Both the parties agreed to realise money by instalments. Then Tk. 100.00 was realised on 1.7.52 and after receiving money by Raj Kumar Deb a receipt was given to the purchaser where both the owners put their signatures. Then Tk. 60.00 was paid on 02.08.1952 and the rest of Tk. 40.00 was realised on 05.09.1952 and they also gave receipt to the purchaser. Thereafter the possession of the land was handed over to the predecessor-in-interest a receipt of acknowledging the money from the plaintiffs. There was an agreement between the parties of executing and registering kabala deed in favour of the plaintiff-side. Finally the defendant Nos. 1-2 did not execute and register the same. The plaintiff of T.S. No. 32/06 have been possessing the land for more than 50 years by realising Government Taxes. They have got mutated their names in respect of disputed land. The defendants of T.S. No. 32/06 have collusively mutated their names in respect of suit land. In the circumstances, they prayed for dismissal of T.S. 177/06 and also prayed a decree in T.S. No. 32/06. The learned Advocate appearing for the respondent in course of his submission cited the case of Mrs. Hamida Banu Vs A.F.M. Naziruddin reported in 11 B.L.D page 211 and in the case of Sree Santipada Datta being dead his heris Aranangsha Datta and other Vs. Satish Chandra Das and others reported in 12 B.L.T.page 27.
 
Heard the learned Advocates appearing for both sides, perused the impugned judgment and decree passed by the learned Joint District Judge, 3rd Court, Sylhet and also perused the depositions of P.Ws and DWs, exhibits and other connected papers and also consider the submissions and the citations as referred by the learned Advocates of both the sides in support of their contention.
 
It appears that P.W. 1 Pritish Ranjan Deb in the examination-in-Chief narrated the case of the plaintiff side. He specifically stated that গজেন্দ্র কুমার দে কে কেহ অনুমতি দেয় নাই। সে কিভাবে ঐ বাড়ীতে ঢোকে তাহা পবিত্র বা রাজ কুমার দেব জানে না। গজেন্দ্র কুমার দে মূল মালিকদের গৃহে আসিয়া ঢুকিয়া যায়। তাহারা কবে ঢুকিয়াছে তাহা বলিতে পারব না। ঐব ভঁৎঃযবৎ ংঃধঃবফঃযধঃ ২১৭ দাগের ভূমিতে বর্তমানে আববাস আলী দখলে আছে। বর্ণিত আববাস আলী অবৈধ কাগজ সৃষ্টি করিয়া দখলে ঢুকে তবে কবে ঢুকে তাহা বলিতে পারিব না। আববাস আলীর বিরুদ্ধে রাজ কুমার ও পবিত্র চরন দেব কোন কিছু করেন নাই। ২১৭ দাগের ভূমিতে অনুমতি দখল ছিলেন জাহ্নবী চরন দেব। আববাস আলীর বিরুদ্ধে জাহ্ননবী চরন দেব ও কিছু করেন নাই। জাহ্নবীচরন দেবের মাতা ব্রক্ষময়ী যে পবিত্র চরন দেবের ভগ্নি তৎ সম্পর্কে কোন লিখিত কাগজাত নাই।  He also stated that 2002 ইংরেজীতে আমরা নামজারীর জন্য আবেদন করি। আমার পিতা বা দাদার সময় নাম জারীর জন্য প্রার্থনা করা হয় নাই বা চেষ্টা করা হয় নাই। আমি প্রেমদা বালা দেব বলে কাউকে চিনি না। নবীন চন্দ্র দেব বলে কাউকে চিনি না।
 
In the above facts and circumstances P. W. 1 in cross examination admitted that there are electricity and gas lines in the disputed house. But according to him he could not say who has made those connections. In this further cross-examination he admitted that they did not realise the rents of the land before 2001. P.W. 2 Sheikh Ramian in his examination-in-Chief admitted that defendants have been possessing the western portion of the land. In the cross-examination he fails to mention the plot no. the Khatian numbers of the disputed land. In another place of cross examination the P.W. 2 said (১-৫ নং বিবাদীর পিতা হরিপদ দেব এবং তাহার পিতা গজেন্দ্র ঐ বাড়ীতে থাকতেন) According to cross examination of P.W. 2 the pucca house was constructed by  Horipada. The garage of the house is being possessed by the defendant the P.W. 2 added. P.W. 3 Md. Amir Ullah in his cross-examination admitted that pond has been possessed by defendants and they have been cutting bomboos. Matab Uddin deposed as P.W. 4 and in the cross examination he said বিবাদীরা নাঃ জমিতে ঘর বাড়ী নিমার্ণন করেছে।
 
On the other hand D.W.1 Shomir Lal Dey in his examination-in-chief categorically narrated the case of the defendant side. He faced cross examination but it appears that no damage has made by the plaintiff-side. In his further deposition he stated that his grand father Gojendra Kumar Deb paid the  consideration money of the disputed house and obtained receipt from Pabitra Charan Deb and Others. D.w.2 Ranu Dutta, a man of 78 years old, in his examination said that Gojendra Kumar Deb obtained the suit house by way of purchase from Pabitra and Raj Kumar. Accordingly to him Raj Kumar was his classmate. He disclosed that the price of the house was settled of Tk. 200.00 and it was paid in three instalments. The 1st instalment was paid on 01.07.1952 and 2nd instalment on 02.08.1952 and the last instalment made on 05.09.1952. He proved  the Ext. X the receipt of payment of consideration money. In the cross examination he categorically stated that he was present on 01.07.1952 at the time of paying the instalment. Accordingly to his further cross-examination he was also present at the time of paying last instalment of the price of the disputed house. Monindra Kumar Deb, a man  of 60 years old deposed as D.W. 3. In the examination-in-chief he supported the case of the defendant-side. In the cross-examination he said “আমার শৈশব কাল থেকেই নাঃ জমি বিবাদীদের দখল করতে দেখি। হরিপদ ও তার পিতাকে ও নাঃ জমি দখল করতে দেখি। বর্তমানে নাঃ জমি তার ছেলেরা দখল করে।”
 
Mr. Faruque Ahmed Chowdhury, an Advocate of the Sylhet District Bar Association deposed as D.W. in the Suit. In his cross examination he clearly deposed that the defendant side has been possessing the disputed land from his childhood. He never saw to possess the land by the plaintiff-side. He was cross examined by plaintiff side and he denied the suggestions put to him by the plaintiff-side. Virtually the plaintiff-side by cross-examining this witness has failed to damage the testimony of the evidence made by this witness. Finally D.W.5 a Mohrar of Sylhet District Registrar Office proved some of the certified copies of deeds in favour of the defendant side.
 
From the above discussions it appears to us that as regards possession of disputed land, the PWs have proved the possession of the defendant side. P.W.2. P.W.3 and  P. W.4 very clearly proved that actually the disputed house is being possessed by the defendant-side. We have already seen from the deposition of P.W.1 and P.W.4 that there are electricity and gas lines in the disputed house. Accordingly to the deposition of P.W.1 he could not say who made those connections in the house. It is evident from Ext O-R(2) that there are  electricity, gas and telephone  connections available in the disputed house. It proves those connections are made in the suit house by the defendant side. We have also observed from the depositions of DWs that they have proved their possession in the disputed land. So we can say that the defendants have possession over the suit land. The plaintiff side at the time of argument raised that the defendants have the permissive possession in the suit land   and they also raised that on the basis of a Farog (Exbt. Da)no title has been accrued in favour of the defendant side. In this context we have perused Ext Da and the evidence of D. W. 2 Ranu Dutta alongwith other exhibited documents of the defendant side and of the view that the defendants have been ables to prove of paying the consideration money to the original owners of the disputed house and subsequently obtained Ext. Da  Though Ext. Da is not duly registered in spite of that consideration the law pronounced by the Hon’ble Appellate Division of the Supreme Court of Bangladesh reported in (XII) B.L.T (AD) 27.
 
In this context we like to quote section 52 of the Easements Act which runs as follows: “LICENSE” DEFFINED.- Where one person grants to another or to a definite number of other persons, a right to do, or continue to do in or upon the immovable property of the grantor, something which would in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license” and referred in the case of Mrs. Hameeda Banu –Vs- A.F.M. Naziruddin reported in  11 BLD page 211 where their lordship held that “As a general rule, a license is revocable section 60 of the Easement Act embodies two exceptions to the general rule namely (1) a license cannot be revocable by the grantor with a transfer of property. and (2) when the license has executed a work of a permanent character and incurred expenses in the execution”. In the aforesaid facts and circumstances we can hold that the disputed house was properly transferred by Raj Kumar Deb and Pabirta Kumar Day in 1952 and since then the defendant side has been possessing the same. The receipt Ext. Da) though not fulfilled the conditions as laid down in section 52 of the Transfer of Property Act, yet after considering the evidences on record it is evident to us that uninterrupted adverse and hostile possession of the defendant side for a period over 12 years from the date of 1.7.52 the defendant side has acquired title in the disputed house by adverse possession. Therefore, this Court opined that the predecessor in interest of the defendant side paid Tk. 200/00 as conside-ration money of the disputed house to Raj Kumar Deb and Pabitra Charan Deb. The defendants have title and possession over the suit house but the plaintiffs side have failed to prove their title as well as the genealogy.  It further appears that the plaintiff filed the suit for declaration of title in the suit land with an order of eviction of defendant licensees from the suit 2nd schedule land within 1st schedule and residential structures therein. We have perused the exhibited documents of the plaintiffs side of this suit along with the oral evidences of P.Ws. It appears to us that plaintiffs side have failed to establish their title in the suit land. The P.Ws. by their depositions categorically proved that the disputed house have been built by the defendants side. According to the P.Ws. the defendants have been possessing the house, the garage and pond. They have connected electricity and gas lines in the house. So considering the facts and circumstances of this suit we are of the view that this suit is not maintainable in its present form and the plaintiffs of this suit are not entitled to get relief as prayed for. On the other hand, plaintiffs of T. S. No. 32/06 have filed the suit for declaration of title by way of purchase and adverse possession. We have already seen that the plaintiffs side of this suit has able to prove their title and possession over the suit land after examining necessary witnesses. They have also produced some of the documents which were marked as Exts. L-a in support of their title and possession in the suit land. This court perused all the exhibited documents and found that the plaintiffs of this suit are entitled to get the relief as prayed for.  
 
In view of the aforesaid facts and circumstances of the case we are of the view that the impugned judgment and decree dated 29.05.2008 passed by the learned Joint District Judge, 3rd Court, Sylhet in T.S. No. 177 of 2006 does not call for any interference under the Appellate jurisdiction of this Court and it is accordingly affirmed.
 
In the result, the appeal is dismissed without any order as to costs.
 
Send down the lower Courts records along with a copy of this judgment to the concerned Court forthwith. 
 
Ed.