Amena Khatun and others Vs. Hem Chandra Roy and others, 3 LNJ (2014) 572

Case No: First Appeal No. 82 of 1994

Judge: Nozrul Islam Chowdhury,

Court: High Court Division,,

Citation: 3 LNJ (2014) 572

Case Year: 2014

Appellant: Amena Khatun and others

Respondent: Hem Chandra Roy and others

Subject: Limitation, Res Judicata, Law of Evidence,

Delivery Date: 2014-03-13


HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Nozrul Islam Chowdhury, J.
And
Kashefa Hussain, J.


Judgment on
13.03.2014
  Amena Khatun and others
... Plaintiffs-Appellants.
Vs.
Hem Chandra Roy and others.
. . .Defendants-Respondents.
 

Transfer of Property Act (IV of 1882)
Section 107
Unilateral document like Patta in the absence of corresponding Kabuliyat opposed to the requirements of section 107 of the Transfer of Property Act.
In respect of Ext. Ga it may be pointed out that the same is hit by section 107 of the Transfer of Property Act since no corresponding kabuliyat was executed by Hari Dasi Roy or Hari Mohan Roy in favour of the executants, therefore, those two documents Ext.Ga and Ga(1) are mere unilateral ones as opposed to the requirements of section 107 of the Transfer of Property Act. In this connection we can safely hold that the decision cited by the learned Advocate for the appellant and reported in 26 D.L.R 45 and 2(A.D.C) Appellate Division Cases 54 are very much applicable in this appeal. . . .(33)

Code of Civil Procedure (V of  1908)
Section 11
The finding with respect to Ext. Ga arrived at by the learned Munsif in Title Suit No. 35 of 1954 (wrongly written as 1953) operates as res judicata on a finding to the contrary in respect of Ext. Ga in the present suit and the finding of the learned Munsif in the previous suit in this respect stands as final by operation of law. . . .(34)

Limitation Act (IX of 1908)
Article 144
The learned Joint District Judge got himself confused referring to different statements made by the witnesses and consequently dismissed the suit on the point of limitation holding to the effect that the plaintiffs failed to prove their possession within 12 years from the date of institution of the suit.  Therefore, the findings of the trial court with respect thereto are not at all sustainable in law. . . .(36)

Limitation Act (IX of 1908)
Section 28
The learned Joint District Judge dismissed the suit and arrived at a conclusion that the defendants acquired title both on the basis of their pattas as well as by adverse possession, which is not sustainable in law. . . . (37)

Code of Civil Procedure (V of 1908)
Order VII, Rule 3
The learned Joint District Judge  has opined that the suit land has been left  un specified in the plaint such an opinion or  finding is simply unwarranted in view of the fact that the suit land has been described with reference to plot number as available in the record of settlement survey. It ought to have been held that it is tantamount to sufficient compliance of the requirements of Order 7 Rule (3) of the Code of Civil Procedure and a contrary view is not sustainable in law. . . . (38)
 
Evidence Act (I of 1872)
Section 43
The trial court ought to have held that the judgment and decree passed in Title Suit No. 21 of 1947 and Title Appeal No. 98 of 1948 as also the judgment of Civil Revision   Case No. 1199 of 1942 being not in triall party those are not binding upon the plaintiffs and more so judgment of a criminal proceeding cannot be admitted into evidence in deciding a civil suit and a contrary view being opposed to the settled principles of law those are not sustainable. . . .(39)

Narendra Nath Pai Vs. Abdur Rahman Mollah, 26 DLR 45; Budhan Mahton Vs. Ramanugrah Singh and another, A.I.R 1947 Patna 78; Sukkada Bala Gope Vs. Pran Hari Gope, II ADC(2005) 54; Pushpa Rani Saha Podder Vs. Rash Mohan Saha, 26 BLD (AD) 50; Mahaprabhu Ram Vs. Gopal Ram Ram and others, 42 DLR (AD) 154; Hazera Begum and others Vs. Roushan Ara Begum and others, 39 DLR (AD) 22; Mst. Ghulam Ilahi Vs. Muhammad Waris Khan, 10 DLR (F.C) 174; Tajuddin and others Vs. Moktar Ahmed and others, 1991 BLD (AD) 44; Halima Begum and others Vs. Syed Ahmed and others, 21 DLR 854; Chand Mah and others Vs. Md. Hossain Ali 1(ka) Md. Sekander Ali and others,  3 BLC 364; Lal Mia being dead his heirs Momena Khatun and others Vs. Haji Md. Ibrahim, 28 DLR (AD) 61; Abdur Noor Vs. Aziruddin and others, 21 BLT(AD) 161; Nasim Ali and another Vs. Safina Bibi, 1988 BLD 493; Syed Moin Ahmed Vs. Khandaker Moinuddin, 19 DLR 912; Md. Lal Mia Vs. Anowar Hossain, 14 MLR (AD) 24; Md. Naimuddin Sarder alias Naimuddin Sarker Vs. Md. Abdul Kalam Biswas, 39 DLR (AD) 237; Sadak Ali Vs. Suruj Ali and others, 7 DLR 95; Mahaprabhu Ram Vs. Gopal Ram Ram, 42 DLR (AD) 154; Hazera Begum and others Vs. Rowshan Ara Begum, 39 DLR (AD) 22 and Mst. Ghulam Ilahi Vs. Muhammad Waries Khan, 10 DLR (FC) 174; Abdul Latif Vs. Abdul Malek Kazi and others, 1984 BLD (AD) 15; Lal Miah being dead his heirs Momena Khatun Vs. Haji Md. Ibrahim and others, 28 DLR (AD) 61; Most. Meheron Nessa Vs Ali Ahmed Khan and others, 15 MLR 197 and Nasim Ali and another Vs. Sakina Bibi, 1988 BLD 493 ref.

Mr. Zakir Hossain Bhuiyan, Advocate
. . . For the appellant.
Mr. Manzurul Haque with
Mr. Mahfuzur Rahman, Advocates.
. . . For the Respondent.

First Appeal No. 82 of 1994
 
JUDGMENT
Nozrul Islam Chowdhury, J:
This appeal, at the instance of the plaintiffs as appellants, is directed against the judgment and decree dated November 28, 1993 passed in Title Suit No. 06 of 1986 by the learned Subordinate Judge, Jessore.
Facts in short, out of which this appeal has arisen are that the appellants as plaintiffs instituted Title Suit No.06 of 1986 before the Subordinate Judge, Jessore impleading the respondents as defendants seeking a decree for declaration of title and recovery of khas possession and in the alternative a saham  of .44 acres of land by way of partition.

The case of the plaintiffs in short, are that the suit land  originally belonged to Balu Mollah as tenant under Erfan Mollah, and it was recorded in the name of Balu Mollah under C.S. Khatian No.35; Balu Mollah having been in possession in exercise of his title therein, died leaving behind one son Aftab Mollah and a daughter Bindhu Bibi as his heirs. Thereafter, Aftab Mollah and Bindhu Bibi having been in possession and enjoyment of the suit land in exercise of their mourosui maliki right, executed a mortgage deed on 20.01.1932 in favour of Satiya Charan and the mortgage was subsequently redeemed. Thereafter, Aftab Mollah and Bindhu Bibi jointly possessed the suit land. Subse-quently Aftab Mollah expressed his willingness to lease out 16½  decimals of land from plot No.189(359) and one Hari Mohan was engaged to write the patta; said Hari Mohan  collusively entered .27 acres of land of plot No. 187 and .39 acres of plot No.190 in the registered patta deed dated 26.09.1940,  behind  the  back of  its executant Aftab Mollah ; thereafter Aftab Mollah executed another patta on 06.03.1941 wherein it was disclosed that the patta registered on 26.09.1940 was not acted upon as there were mistakes; subsequently in the year 1943 Aftab Mollah died leaving behind the plaintiffs as his heirs; the registered patta dated 26.09.1940 therefore did not confer any title in respect of  the suit land in favour of Hari Mohan. When Bindhu Bibi daughter of Aftab Mollah found it difficult to retain her property she had to bring Title Suit No. 35 of 1953 before the Munsif, 3rd Court, Jessore implea-ding Hari Mohan Roy, Hari Dasi and others as defendants where Bindhu Bibi got a contested decree and in that suit the patta dated 26.09.1940 executed by Aftab Mollah in favour of Hari Dasi was found as not sustainable in law. When the plaintiffs had gone for cutting Sagun tree from the suit land they were objected to by the defendant Nos.1 and 2 and at that stage the plaintiffs for the first time came to know that the record of right in respect of the suit land had been prepared wrongly in favour of the father of defendant Nos.1 and 2   although the defendants have/had no right, title,  interest or possession in the suit land conseq-uently the instant suit was brought for declara-tion of their title by the plaintiffs and for recovery of khas possession and in the alternative the plaintiffs prayed for a saham to the extent of .44 acres in the suit land by partition in the form of preliminary decree. The plaintiffs also prayed for declaration that the patta dated 06-09-1940 in favoutr of Hari Mohan Roy executed by Aftab Mollah is null and void and not binding upon the plaintiffs.

The defendant Nos.1 and 2 and the added defendant 3(Ka) entered appearance in the suit upon filing two separate written statements; in the written statement filed by the defendant Nos.1 and 2 they denied the material allegat-ions made in the plaint stating inter alia that the suit land along with other lands originally belonged to Balu Mollah and it was recorded in C.S.khatian No.35 correctly who having been in possession and  enjoyment of the suit land along with other lands,  died leaving behind his only son Aftab Mollah and only daughter Bindu Bibi as his heirs. Aftab Mollah being in possession of the suit land transferred .66 acres of land at a salami  of Tk.150/- fixing 2.25 anas  yearly rent upon  executing a registered patta dated 26.09.1940 in favour of Hari Dasi the  mother of defendant Nos.1 and 2,  an area of 16½ decimals of land appertaining to  plot No. 189 and plot no 356 not covered by the suit land was also transferred in favour of Hari Mohan Roy the father of the defendant Nos.1 and 2 by another registered patta dated 06.03.41 executed by Aftab Mollah and handed over possession where the predecessors of the defendant Nos.1 and 2 got possession by constructing house thereon ; the patta executed by Aftab Mollah in 1941 in favour of the father of the defendant Nos.1 and 2 being registered deed No.194 contains an averment that patta dated 06.09.1940 being a mistaken one it was not acted upon but such an averment made by Aftab Mollah in his subsequent patta of 1941 was illegal and beyond authority; Aftab Mollah and his wife admitted the predecessor of the answering defendants as tenant upon receipt of rent from them. The answering defendants have been residing in the said house constructed by their father. The answering defendants have been in possession and enjoyment of the suit land from the time of their predecessor right from the year 1940 therefore a title by adverse possession has also accrued in their favour. The answering defendant Nos. 1 and 2 also disclosed in the written statement that they have sold out .11¾ acres of land in favour of Gyanodabala by a registered kabala and had handed over poss-ession where, on the death of Gyanodabala, her son has been in possession thereof.

In the written statement filed by defendant 3(ka) he had adopted the written statement submitted by the defendant Nos.1 and 2 and had also added that her mother Gyanodabala purchased an area of .11 ¾ acres of land from defendant Nos. 1 and 2by a registered kabala dated 02.02.70 which was executed on 31.01.70 in favour of the mother of the answering defendant No.3(ka) and he has been in possession and enjoyment of the said land covered by the said kabala. Therefore, the defendant prayed for dismissal of the suit.

At the trial 6(six) issues were framed by the learned Subordinate Judge now Joint District Judge which being apt are quoted below :-

(১)   অত্র মোকদ্দমা বর্তমান আকারে ও প্রকারে রক্ষণীয় কিনা?
(২) অত্র মোকদ্দমা তামাদি দোষে বারিত কিনা?
(৩) অত্র মোকদ্দমা রেসজুডিকাটা এর নীতির দ্বারা বারিত কিনা?
(৪) নালিশী জমিতে বাদীপক্ষের স্বত্ব স্বার্থও দখল আছে কিনা?
(৫) বাদীপক্ষ তাহাদের প্রার্থীত মতে ডিত্র্রীপাওয়ার অধিকারী কিনা?
(৬) বাদীপক্ষ আর কি কি প্রতিকার পাওয়ার অধিকারী?
 
In course of trial of the suit the plaintiffs examined two witnesses of them Jarina Khatun was examined a P.W.1 and Rakib Mollah was also examined as P.W.2. On the other hand, the defendant Nos.1 and 2 examined six witnesses on their behalf while the defendant No.3(ka) examined one  Guru Das as D.W.1  in support of his case. Through the said witnesses the plaintiffs side produced C.S. Khatian No.35 as Ext.1, S.A.Khatian No.43,45,46 as Ext. 1(ka) – 1(ga) , judgment passed in Title Suit No.35 of 1953 Ext.2 and decree drawn in Title Suit No.35 of 1953 Ext.3 , plaint of Suit No.35 of 1953 Ext.4, while defendants 1 and 2 exhibited 33 rent receipt of the year 1954 marked as Ext. Ka-Ka-(33) , tax receipt of Pourashava  Ext. Kha-Kha(17) registered patta dated 26.09.40 executed by Aftab Mollah in favour of Hari Dasi Ext.Ga, deed of patta dated 8.3.41 executed by Aftab Mollah in favour of Hari Dasi Ext.Ga(1),  judgment dated 19-02-43 passed in C.R No.1199 of 1942 Ext.Gha , judgment dated 31.01.54 passed in Title Suit No.35 of 1953 marked as Ext.Gha(2),Judgment and decree passed in Title Appeal No.98 of 1948 and the decree drawn up in Title Suit No.35 of 1953 Ext. Uma series, depositions of Akarjan Bibi in Title Suit No.21 of 1947 Ext.Cha, deposition of Krishna Lal Dutta  Ext.Cha(1), S.A. Khatian No.46,43,45 Ext. Chha- Chha(2), application for amendment of the plaint filed in Title Suit No. 247 of 1982 Ext. Ja, application for amendment filed in  Miscellaneous Appeal No.87 of 1984( Pauper) Ext. Jha(1), petition of Miscellaneous Case No. 87 of 1984  Ext.Jha (Pauper), Commissioner’s Report  along with map submitted  in Title Suit No. 247 of 1982, Ext. Neo, deposition of Hari Mohan Roy given in Title Suit No.21 of 1947 Ext.Ta, deposition of Rakib Mollah given in Miscellaneous Case No.6 of 1990 (Ext.Ta.1) the document produced by defendant 3(ka) have been marked as Ext.Ka series, sale deed dated 02-02-70 ext. Ka, Mutation Khation separation parcha 1189/1. Ext. Kha, rent receipt Ext. Kha(1) – Kha(2)  tax receipt of Pourashava  Ext. Ga Series. Upon conclusion of the trial the learned Joint District Judge by his judgment and decree dated 28.11.1993 dismissed the suit.

Being aggrieved by the aforesaid judgment and decree dated 28.11.1993 the plaintiffs as appellants preferred the instant appeal.

Mr. Zakir Hossain Bhuiyan, the learned Advocate appearing on behalf of the appellants has taken us through the materials on record including the impugned judgment as also the exhibits produced from both sides and submits that in the instant appeal it is an admitted position that the suit land along with other land originally belonged to one Valu Mollah and it was rightly recorded in C.S.khatian No. 35, C.S. plot No.187 and 190 S.A khatian No.46 and 43 S.A plot Nos.209 and 210 under the mouza ghope P.S.Kotwali District Jessore and Valu Mollah having been in possession and enjoyment of the suit land along with other lands, died leaving behind his only son Aftab Mollah and only daughter Bindhu Bibi as his legal heirs who having been in possession and enjoyment of the land left behind by their father Aftab Mollah offered to lease out 16 ½ decimals of land from non suited plot Nos. 189/359 to one Hari Mohan Roy the father of respondent Nos.1 and 2 and on 26.09.1940 a collusive deed of patta was purported to have been executed and registered on 26.04.1940 in favour of Hari Dasi Roy  by Aftab Mollah and in the said deed of patta .66 acres of land from suit plots were shown to have been registered as a result in the following year i.e on 06.03.1941 Aftab Mollah executed another deed of patta  in favour of Hari Mohan Roy in respect of 16 ½ decimals of land from  non suited C.S plot No.189/359 with an averment that the deed  of patta dated 26.04.1940 in favour of Hari Dasi Roy was not acted upon because errors were detected therein; about 3 years later in 1943 Aftab Mollah died leaving behind a widow Akarjan and three minor daughters who are the appellants before this court as his legal heirs.

Mr. Zakir Hossain Bhuiyan, also submits that in the year 1953 Bindhu Bibi instituted Title Suit No.35 of 1953  impleading Hari Dasi Roy and Hari Mohan Roy as defendant Nos.1 and 2 seeking  a decree for partition and that suit was decreed  on contest and the plaintiff Bindi Bibi was allotted a saham to the extent of 33 decimals of land. The plaintiffs used to enjoy and possess the suit land by enjoying usufructs therefrom but the defendants raised claim of title to the suit land on the basis of the aforesaid patta and subsequent record of right prepared in their names and on 21.03.1982 the plaintiffs were resisted to cut Segun trees from the suit land by the defendants and finally on 12.01.1989 the plaintiffs were dispossessed from the suit land by the defendants, therefore, the suit was brought as aforesaid.

Mr. Bhuiyan submits further, that admi-ttedly the plaintiffs are the legal heirs of Aftab Mollah and consequently on his death his property devolved upon the plaintiffs as they are the legal heirs of Aftab Mollah. It is also submitted by Mr.Bhuiyan that possession of the suit land all through remains with the plaintiffs and it has been established by the evidence of P.Ws and it is also  proved through the evidence of a competent witness of convincing nature like P.W.1 who categorically stated in her deposition that the plaintiffs were dispossessed from the suit land  on 12.11.1989 and her testimonies  have been substantially corroborated on this point but the learned  Joint District Judge arrived at a finding to the contrary upon misreading of those evidence on record.

The learned Advocate for the appellants submits further that the patta dated 26.09.1940 has been annulled/ scraped upon stipulation of the fact that the same was not acted upon moreover the said patta has never been supplemented by any corresponding kabuliyat executed by either of the parents of defendant Nos. 1 and 2 as contemplated under section 107 of the Transfer of Property Act, 1882.

To substantiate his submission the learned Advocate for the appellant has placed reliance in the case of Narendra Nath Pai Vs. Abdur rahman Mollah reported in 26 DLR 45, in the case of Budhan Mahton Vs. Ramanugrah Singh and another reported in A.I.R 1947 Patna 78 and the case of Sukkada Bala  Gope Vs. Pran Hari Gope being dead his legal heirs reported in II ADC(2005) 54.

Mr.Bhuiyan also submits that the defendants failed to prove  any iota of evidence , substantially or collateral that the alleged patta dated 26.09.1940  executed by Aftab Mollah in favour of Hari Dasi was ever acted upon either by delivery of possession or by payment of rent to Aftab Mollah or his successors rather it appears from their exhibits Ka series that rent/ land  development taxes were paid to the government and not to their lessor Aftab Mollah or any of his heirs, moreover exhibits Ka series do not show that rent was paid in respect of the suit land as described in the schedule to the patta dated 06.03.1941.

Mr.Zakir Hossain Bhuiyan submits further that a case of title by adverse possession and the case on the basis of document cannot be claimed simultaneously as in the instant case. In substantiating his submission the learned Advocate placed reliance in the case of Pushpa Rani Saha Podder Vs.Rash Mohan Saha being dead his heirs Kartick Chowdhury Saha  and others  reported   in 26 B.L.D (AD) 50. 
Mr. Bhuiyan also submits that the  claim of title by adverse possession was neither specifically pleaded nor proved by the defendants and no issue was framed to that effect either, nonetheless the learned Joint District Judge, conferred the title on the plaintiffs by a gratuitous finding of adverse possession in their favour which is not sustainable. In this connection he placed reliance in the case of Mahaprabhu Ram Vs. Gopal Ram Ram and others reported in 42 D.L.R(AD) 154 and the case of Hazera Begum and others Vs. Roushan Ara Begum and others reported in 39 D.L.R (AD) 22, the case of Mst. Ghulam Ilahi Vs. Muhammad Waris Khan reported in 10 D.L.R (F.C) 174 and Tajuddin and others Vs. Moktar Ahmed and others reported in 1991 BLD (AD) 44. It is also submitted by Mr. Bhuiyan that S.A. record prepared in the name of the defendants which has got no presumptive value of correctness in as much as it has/had no basis as such mere preparation of S.A.khantian in their names or payment of rent by them does not create any title in favour of the defendants. In this connection the learned Advocate placed reliance in the case of  Halima Begum and others Vs. Syed Ahmed and others reported in 21 D.L.R 854. The case of Chand Mah and others Vs. Md.Hossain Ali being his heirs 1(ka) Md.Sekander Ali and others  reported in 3 B.L.C 364 and the case of Lal Mia being dead  his heirs Momena  Khatun and others Vs. Haji Md.Ibrahim reported in 28 D.L.R(AD) 61.

It is also submitted by the learned Advocate for the appellant that mere nonpayment of rent by the plaintiffs does not extinguish or affect their title to the suit land. In this connection the learned Advocate for the petitioner placed reliance in the case of Abdur Noor vs. Aziruddin and others reported in 21 B.L.T(AD) 161.

Mr.Bhuiyan submits further  that the finding of fact arrived at by the learned Munsif in Title Suit No.35 of 1953 to the effect  that the claim of the parents of  defendant Nos.1 and 2 by patta of 1940 and 1941 were bad in  law, till subsist  since no appeal or cross-appeal or revision was filed against the said judgment and decree as such the said judgment is admissible in evidence in the instant case and binding upon the defendant Nos.1 and 2 within the meaning of section 43 of the Evidence Act and it will also operate as res judicata against them  since their parents were party to that suit. In this connection the learned Advocate placed reliance in the case of Nasim Ali and another Vs. Safina Bibi reported in 1988 B.L.D 493.

On the other hand Mr.Manzurul Haque the learned Advocate appearing with Mr. Mahfuzur Rahman for the respondents submits that the instant suit as brought by the plaintiff appellants is barred by limitation since the same has not been brought within 12 years from the date of dispossession of the plaintiffs from the suit land more particularly  when the plaintiffs  failed to  prove their possession and dispossession on their given date and time.

It is also submitted by the learned Advocate for the respondent that the plaintiffs have to prove their possession in the suit land within 12 years from the date of their dispossession and referring to the deposition of P.W.1 the learned Advocate submits that the instant suit has been brought long after 12 years of their dispossession from the suit land by the plaintiffs.

In substantiating  his submission the learned Advocate for the respondents placed reliance in the case of Syed Moin Ahmed Vs. Khandaker Moinuddin  reported in 19 D.L.R 912 and the case of Md. Lal Mia Vs. Anowar Hossain reported in 14 M.L.R. (AD) 24.

Mr. Manzurul Haque the learned Advocate submits further that the plaintiff is to prove his own case  in order to obtain a decree and weakness of the defendants case is  no ground for passing a decree in favour of the plaintiffs. In substantiating his submissions the learned Advocate placed reliance in the case of  Md. Naimuddin Sarder alias Naimuddin Sarker Vs. Md. Abdul Kalam Biswas reported in 39 D.L.R (AD) 237.

The learned Advocate for the respon-dents submits further that in Title Suit No.35 of 1954, Ext. Ga was found to be bad in law only but it was not declared to be invalid. Therefore, the finding with respect to Ext.Ga in Title Suit No. 35 of 1954 cannot raise the issue of res judicata in the instant suit.

The learned Advocate for the respon-dents submits further that possession under mistaken or invalid title is effective to extinguish owner’s title. The plaintiffs did not claim their title by adverse possession is not enough to deny the relief he is entitled to. In substantiating his submission the learned advocate placed reliance  in the case of  Sadak Ali Vs. Suruj Ali and others reported in 7 D.L.R 95.

The learned Advocate for the respondent submits lastly that the apparent observation in Title Suit No.35 of 1954 with respect to Ext. Ga to the effect that the same is bad in law by the trial court was not given by framing any issue to that effect, therefore, such observation having no binding effect on any person whatsoever therefore does not raise any question of res judicata in the instant suit.

We have heard the learned Advocates for the parties, perused the materials on record  including the depositions of the witnesses and the documents exhibited from both sides wherefrom it transpires  that the main issue involved in this appeal as to whether  patta dated 26.09.1940 purported to have been executed by Aftab Mollah one of the admitted original owner of the suit land in favour of Hari Dasi Roy , Ext.Ga had divested Aftab Mollah of his title to the properties  covered by the said patta or not , if the answer is in the affirmative in that case ,  case of the plaintiffs must fail. But if the answer is in the negative in that case , the plaintiffs must succeed , therefore, having concentrated our full attention to the said  Ext. Ga, we find that Title Suit No.35 of 1954( wrongly written as 1953 in some places) was instituted before the 3rd Court of Munsif, Jessore by Bindhu Bibi as plaintiff impleading Hari Mohan Roy and Hari Dasi Roy as main defendant Nos.1 and 2 respectively along with 5 others as defendants seeking a decree for declaration of plaintiffs title to the extent of 5 annas 4 pai share in the suit land  and possession therein by partition and in the said suit one of the six issues issue No.5 was to the effect as under :-       
‘’Has the plaintiff her alleged right title and interest in the land in suit.’’

It may be pointed out that Bindhu Bibi is the only daughter of Valu Mollah the admitted original owner of the suit land which was also averred  in Title Suit No.35 of 1954. Of course, Bindhu Bibi had only one brother named Aftab Mollah and this part of the case is also admitted by both the parties.
Having gone through the judgment delivered in Title Suit No.35 of 1954 carefully, we find that in that suit too Hari Mohan Roy and Hari Dashi Roy claimed their title in the suit land as defendants on the basis of two pattas one dated 26.09.1940 executed by Aftab Mollah in favour of Hari Dasi Roy and the other dated 06.03.41 executed by Aftab Mollah in favour of Hari Mohan Roy and in deciding  the title  the plaintiffs the learned Munsif clearly observed as under:-

‘’As regards patta in favour of Hari Dasi defendant No.2, which is dated 26.09.40 it is said in the body of the patta dated 6.3.41 Ext. A(1) that patta was not acted upon and not given effect to  between the parties due to some errors and remained with the grantor.’’

In the body of the same judgment, following the aforesaid observation the learned Munsif has also recorded another finding as under:-

``A point has been raised as to whether defendant’s alleged lease is governed by B.T Act or T.P Act. It is in the evidence that he has taken lease of the property for residential purpose and admittedly this defendant himself is a carpenter.’’

It is also observed by the learned Munsif in his said judgment to the effect

‘’ admittedly the suit land situated within Jessore Municipality and it is also admitted that land was taken lease for residential purpose ..............’’

In deciding the plaintiffs title in the said Title Suit No.35 of 1954 the learned Munsif arrived at a definite finding to the effect:-

‘’ the defendants’ alleged lease as observed defective, cannot bind her share  and in view of the findings above and reasons therefore the issue No.5 is determined and answered  in the affirmative.’’

We have also found that in the said Title Suit No.35 of 1954 the validity of the two pattas, one in favour of Hari Mohan Roy dated 26.04.40 and other dated 6.3.1941 Ext. A and A(1) respectively in that suit were very much in issue before  the  learned Munsif  and hving considered the submission from both sides and upon consideration of the evidence on record available before him the learned Munsif arrived at a definite finding as quoted above. Therefore, findings in respect of both the two documents namely the aforesaid two pattas are very much binding upon the parties. involved in that suit, more particularly when it is an admitted position that the said judgment and decree passed in Title Suit  No.35 of 1954 was not challenged before any higher forum  and in such view of the matter we have no hesitation to hold that the finding with respect to patta dated 26.09.40 executed by Aftab Mollah in favour of Hari Dasi Roy as arrived in Title Suit No.35 of 1954 operate as res judicata , therefore,  no finding to the contrary with respect to the said document Ext. Ga in this appeal namely patta dated 26.09.40 executed by Aftab Mollah in favour of Hari Dasi Roy is possible ,therefore, it can be safely held  that the Ext.Ga did not confer any title in favour of Hari Dasi Roy or in other words divested Aftab Mollah of his title in respect of the land covered by the same.

In respect of said Ext.Ga it may also be pointed out that the same is hit by section 107 of the Transfer of Property Act since no corresponding kabuliyat was executed by Hari Dasi Roy or Hari Mohan Roy in favour of the executants, therefore,  those two documents Ext.Ga and Ga(1) are mere unilateral ones as opposed to the requirements of section 107 of the Transfer of Property Act. In this connection we can safely hold that the decision cited by the learned Advocate for the appellant and reported in 26 D.L.R 45 and 2(A.D.C) Appellate Division Cases 54 are very much applicable in this appeal.

On a close scrutiny of the Ext.Ga  we find  that the said document namely registered patta  dated 26-09-40 contains four pages of which first two pages are of the same hand and the last two pages appears to have been written by different hand. This is a position which has however not been agitated by any of the parties, therefore, we are not going to make any  finding on this point though it appears to be as such. On a scrutiny of the trial court ‘s judgment we do not find any definite finding about the genuineness or otherwise of Ext. Ga  rather the learned Joint District Judge dismissed the suit mainly on the ground of absence of possession of the plaintiffs in the suit land beyond the period of limitation according to him. But in our considered opinion, we find that the learned Joint District Judge ought to have arrived at a different finding with respect to the said document Ext.Ga, therefore, it transpires further that the learned Joint District Judge misdirected himself in arriving at a decision in the instant suit. The finding of the learned Joint District Judge in the impugned judgment to the effect:-

“নালিশী ভূমিতে বাদীগনের দখল থাকা মর্মে কিংবা বেদখল হওয়া মর্মে কোন প্রমানাদি নাই। বিবাদীগন তাহাদের পূর্ববর্তীত্র্রমে নালিশী ভূমিতে দ্বাদশ বর্ষের বহু উর্ধ্বকাল যাবৎ স্বত্ববান দখলকার থাকায় নালিশী ভূমিতে তাহাদের বিরুদ্ধ দখল জনীত স্বত্বের উদ্ভব হইয়াছে বলিয়া আদালত মনে করেন। অধিকন্তু অত্র মোকদ্দমা res judicata দ্বারা বারীত বলিয়া বিবেচিত হয়।”

are based on misreading and misconstruction of evidence of P.Ws.1 and 2 while  the evidence on the point of res judicata is totally miscon-ceived and based on total misconstruction of the pleadings of the parties rather in this connection we have found the finding with respect to Ext.Ga arrived at by the learned Munsif in Title Suit No.35 of 1954(wrongly written as 1953) operates as res judicata on a finding to the contrary in respect of Ext.Ga in the present suit and the finding of the learned Munsif in the previous suit in this respect stands as final by operation of law.

In this connection deposition of P.W.1 may be referred to where she categor-ically asserted (plaintiff No.3)

“ ইংরেজী ১৯৮২ সালে আমরা কেছ করি। নালিশী জমি হইতে বর্তমানে বেদখল আছি। মামলা দাখিলের  সময় আমাদের দখল ছিল। ইংরেজী ৮৯ সালের ১১ মাসের ১২ তারিখে বেদখল করে। ঐ দিন এই মামলার তারিখ ছিল। ঐ দিন আমি বিবাদীদের দ্বারা বেদখল হই”।------আমার নানী আমাকে বিয়ে দেয়। তখন নানী বাড়ী থাকতাম।-----আমার বাবা  কোন সালে মারা যান বলিতে পারি না।----নানী বাড়ীতে আমরা ৩ বোন মানুষ হই। জন্মের পর থেকেই আমরা নানীর কাছে। কত বছর থেকে সেখানে থাকি বলিতে পারি না। মা মারা যাওয়ার পর সেখানে যাই। তখন আমার বয়স কত বলিতে পারি না------

It may be pointed out that this witness has learnt to put her signature only from her neighbor. Therefore, she is an illiterate rural woman and there are every reason for her to make some confused statements in her cross-examination by legal experts.

P.W.2 Rokib Mollah who reside to the east of the suit land deposed to the effect “বাদীরা যখন নালিশী জমি দখল করিত তখন তাহারা নালিশী জমি থেকে নারিকেল, বাঁশ, খেজুরের রস নিয়ে আসতো। আজ থেকে ১০/১২ বছর আগে বাদীরা ঐ সমস্ত জিনিস আনে বলে আমি জানি।” the said witness is aged about 70 years.

Defendants witnesses are six in number of them D.W.1 Hem Chandra Roy who is defendant No.1 D.W.2 Md.Shahabuddin D.W.3 Adiluddin Bepari D.W.4 Md.Motiar Rahman D.W. 5 Noban Ali D.W.6 Eakub Ali Biswas they have deposed in the case and supported the defendants story therein but for our purpose we do not feel it necessary to discuss the same elaborately  in view of our finding to the effect that the Ext.Ga the patta dated 26.09.40 was never acted upon ,therefore, it had not conferred any title either to Hari Dashi or her successor the defendants. On the contrary we have also noticed that by the patta dated Ext. Ga(1) executed by Aftab Mollah in favour of  Hari Mohan Roy dated 8.3.41 relates to the some land beyond the suit land where  the defendants claimed to have been in possession by erecting their homestead  and the said land being adjacent to the suit land. The learned Joint District Judge got himself confused referring to different statements made by the witnesses and consequently dismissed the suit on the point of limitation holding to the effect that the plaintiffs failed to prove their possession within 12 years from the date of institution of the suit.  Therefore, the findings of the trial court with respect thereto are not at all sustainable in law.

Having gone through the Ext. Ka series which have been  claimed to be rent receipts but those  are paid to the government but not to the lessor Aftab Mollah  nor any of the members of his family  moreover those rent receipts tax receipts do not attract the suit land as no specification of land is available therein  . It may also be pointed out that the defendants took a duel plea in their pleading in a casual way, one is that they claim title on the basis of patta dated 26.09.40 and the other one for adverse possession. The learned Joint District Judge dismissed the suit  and arrived at a conclusion that the defendants acquired title both on the basis  of their pattas as well as by adverse possession , which is not sustainable in law ,  in view of the principle of law enunciated in 26 B.L.D (AD) 50 to the effect that  case of title  by adverse possession and a case of title on the basis of  document cannot be claimed  simultaneously but in the instant case the plaintiffs did so . In this connection it may also be pointed out that the claim of title by adverse possession though accepted by the trial court was neither specifically pleaded nor proved by  evidence . In the instant case and in the position like this the finding of title by adverse possession by the defendants as arrived by the trial court cannot  but be treated as gratuitous finding of adverse possession and in this connection reference may be made to the case of Mahaprabhu Ram Vs.Gopal Ram Ram  reported in 42 D.L.R (AD) 154. It may also be pointed out that the learned Joint District Judge committed error of law without applying his judicial mind to the settled position of law that possession can never be adverse if it is referable to lawful title. Since in the instant case the defendants claim lawful title on the basis of two separate registered deed of patta , on the one hand , and title by adverse possession on the other, as such both  the pleas taken by the defendants must fail since in such a situation any court or tribunal becomes totally  perplexed as to which version of their claim is to be believed or disbelieved. In this connection reference may be   made to the case of Hazera Begum and others Vs. Rowshan Ara Begum reported in 39 D.L.R (AD) 22 and Mst.Ghulam Ilahi Vs. Muhammad Waries Khan  reported in 10 D.L.R (FC) 174. The learned Joint District Judge also failed to appreciate that the defendants plea of adverse possession is not tenable in law against the plaintiffs since they are rightful claimants to the suit land. Reference may be made in this connection to the case of Abdul Latif Vs. Abdul Malek Kazi and others reported in 1984 B.L.D (AD) 15. It may also be pointed out that record prepared in the names of the defendants has got no presumptive value of correctness in as muchas it has/had no basis particularly in view of our finding that Ext.Ga is not sustainable in law as such mere preparation of S.A.khatian in favour of the defendants or payment of rent by them to the Government do not create any title in their favour. In this connection reference may be made to the case Lal Miah being dead his heirs Momena Khatun Vs. Haji Md.Ibrahim and others reported in 28 D.L.R (AD) 61. It may be pointed out further that the finding of the learned Joint District Judge on the point of res judicata is patently wrong and not sustainable in law particularly in view of the settled principle that right to partition is a continuous right.  Reference may made in this connection to the case of Most. Meheron Nessa  Vs  Ali Ahmed Khan and others reported  in 15 M.L.R 197 and in this connection it may be recalled that the finding of the learned Munsif ,3rd Court, Jessore in Title Suit No. 35 of 1954 to the effect that the pattas in favour of both the mother and father of defendant Nos.1 and 2 executed in the year 1940 and 1941 were bad in law, is a finding  which has been subsisting till date particularly in view of the fact  that the judgment of the said suit was not challenged before any higher  forum at any stage and more so when the predecessors of the defendants 1 and 2 were very much contesting parties in that suit and in such view of the matter the said judgment is admissible in evidence in the instant suit and the same is binding upon the contesting defendant Nos.1 and 2 particularly in view of the provision of section 43 of the Evidence Act and in that view of the matter such finding with respect to the pattas of 1940 and 1941 operates as res judicata in the instant case . In this connection reference may be made to the case of Nasim Ali and another  Vs. Sakina Bibi  reported in 1988 B.L.D 493.

We have also noticed that the learned Joint District Judge  has opined that the suit land has been left  un specified in the plaint such an opinion or  finding is simply unwarranted in view of the fact that the suit land has been described with reference to plot number as available in the record of settlement survey . It ought to have been held that it is tantamount to sufficient compliance of the requirements of Order 7 Rule (3) of the Code of Civil Procedure and a contrary view is not sustainable in law.

The trial court ought to have held that the judgment and decree passed in Title Suit No.21 of 1947 and Title Appeal No. 98 of 1948 as also the judgment of Civil Revision   Case No. 1199 of 1942 being not in tra party those are not binding upon the plaintiffs and more so judgment of a criminal proceeding cannot be admitted into evidence in deciding a civil suit and a contrary view being opposed to the settled principles of law those are not sustainable.

We have also noticed that the plaintiff-appellants in their plaint disclosed the cause of action in the suit in the languages as under:- “সে মতে জেলা যশোরের থানা কোতয়ালীর অন্তর্গত যশোর পৌর এলাকাধীন ৯২ নং ঘোপ মৌজায় বাদীগনের পিতৃ বিয়োগের পর নালিশী সম্পত্তি হইতে বেআইনী ও তঞ্চকীভাবে বেদখল হইবার প্রতিদিন হইতে ও সর্বশেষ বিগত ইংরেজী ১৯৮২ সালের মার্চ মাসে বাদীগন নালিশী ভূমি ও গৃহাদিতে তাহাদের পৈত্রিক স্বত্ব সম্বন্ধে সম্যক জ্ঞান লাভ করিবার সময় হইতে বাদীগনের বিবাদীগন বিরুদ্ধে বর্তমান নালিশের কারন উদ্ভব হওয়ায়----------আদালত হইতে”

In view of the evidence led by the plaintiffs through P.W.1 and corroborated by P.w.2 the trial court ought to have held that in the instant case the question of limitation ought to have been construed liberally and a contrary view as has been taken in the instant case by the learned Joint District Judge is not sustainable in law.

In view what has been stated above, we find substance in this appeal. Accordingly, the same is allowed without any order as to costs and the impugned judgment and decree dated 28.11.1993 passed by the Subordinate Judge now  Joint District Judge, Jessore is hereby set aside and Title Suit No. 06 of 1986 brought by the plaintiffs is hereby decreed as prayed for and the defendants are hereby directed to vacate the suit land upon removing the structures, if any,  within 60 (sixty) days from the date of receipt of the judgment, failing which the plaintiffs are at liberty to recover khas possession of the suit land through court by  process of execution.

Send down the lower court records with a copy of this judgment at once, to the court concerned for compliance.

Ed.