Anowar Hossain and others Vs. Custodian, Vested and Non-residents Land Bangladesh, 3 LNJ (2014) 816

Case No: Civil Revision No. 3358 of 2004

Judge: Sharif Uddin Chaklader,

Court: High Court Division,,

Advocate: Mrs. Sadia Rowshan Jahan,Mr. S.S. Sarker,,

Citation: 3 LNJ (2014) 816

Case Year: 2014

Appellant: Anowar Hossain and others

Respondent: Custodian, Vested and Non-residents Land Bangladesh

Delivery Date: 2011-05-23

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Sharif Uddin Chaklader, J.

Judgment on
23.05.2011
 
  Anowar Hossain and others
...Petitioners.
Versus
Custodian Vested and Non-residents Land Bangladesh Secretariat, Dhaka and others.
...Opposite parties.
 

Code of Civil Procedure (V of 1908)
Order XLI, Rule 31
The judgment of the appellate Court having not been given in accordance with the provisions of Order XLI, Rule 31 of the Code as he failed to apply his judicial mind, the appeal was sent back on remand to the appellate Court to write out a judgment in accordance with law. . . . (11)

Mrs. Sadia Rowshan Jahan, Advocate
...For the petitioners.

Mr. S.S. Sarker, Deputy Attorney General
...For the opposite parties.

Civil Revision No. 3358 of 2004
 
JUDGMENT
Sharif Uddin Chaklader, J.
 
This rule by the plaintiff, directed against judgment and decree dated 10.6.2004 passed by the learned Additional District Judge, Lakshmipur in Title Appeal No.43 of 2001 affirming those dated 27.2.2001 passed by the learned Subordinate Judge, 1st Court, Lakshmipur in Title Suit No. 40 of 1998.
 
Petitioners as plaintiffs instituted the aforesaid suit for a declaration that 'kha' schedule property is not vested and non resident property.
 
Plaintiffs case, in short, is that, suit land originally belonged to Sailendra Kumar Rai, Sushil Kumar Rai, Sudhir Kumar Rai, Bulan Mohani Sundari and Mokhoda Sundari Chowdhury and while they were possessing the said land, sold 2.15 acres of land of schedule Ka(1) properties and 1.14 acres of land of schedule Ka(2) property in total an area of 3.29 acres of land, described in schedule Ka of the plaint to one, Abdul Latif, predecessor of the plaintiffs by executing a bainama in 1353 B.S. and delivered possession to Abdul Latif who constructed his residential building, excavated ponds and grew crops and fruits. But in MRR survey the suit land have been wrongly recorded in the name of Sailendra and others as such, Abdul Latif filed Title Suit No.77 of 1969 in which government of East Pakistan was defendant No.7. Suit was decreed on compromise on 18.9.1974 and on the strength of the decree, Abdul Latif corrected the MRR khatian and mutated his name in Case No.84 of 1974-75 and paid rents to the government regularly. Abdul Latif died leaving behind 2 sons, plaintiff Nos.1 and 2, 5 daughters and wife. Three daughters and wife of Abdul Latif sold their shares to the plaintiff Nos.1 and 2. These plaintiffs along with their two sisters, plaintiff Nos.3 and 4, mutated their names in the record of rights vide Mutation Case No.665 of 1987-88. The present D.P. khatian was prepared in the name of these plaintiffs and they are paying rents for the suit land. But on 4.10.1998 when plaintiff No.1 went to pay rents, defendants refused to accept the rents on the plea that suit property is vested and non resident property and they would lease out the property, hence the suit.
 
Defendants Nos.1-3 appeared and contested the suit and in their written statement it is stated that during 1965 war, original Hindu owners left for India, settled there, acquired Indian citizenship and their properties were listed as vested property. The government leased out the property. It is their further case that papers filed by the plaintiffs over the suit property are forged, false, concocted and without any consideration.
 
The case of defendant Nos.4-10 in their written statement is that .26 acres of land of the suit plot being vested and non resident property was leased out to one Mohammadullha and Sahadullah vide VPSC list No.49 of 1967-98 and they paying rent to the Government and they possessing the land and when they failed to pay rent, notices were served upon them and after such notice they paid rent. Mohammadullah died leaving these defendants who got possession over .13 acres of land out of .26 acres of land and they prayed for getting lease in their favour, their prayer was accepted and they paid rents to the government up to 1405 B.S. The suit of the plaintiffs is liable to be dismissed with costs.
 
Learned Subordinate Judge, 1st Court, Lakshmipur on the pleadings of the parties framed 6 issues are as follows:
       " i. Is the suit maintainable in its present from;
        ii. Is there any cause of action for the suit;
       iii. Is the suit barred by limitation;
       iv. Is the plaintiffs have absolute right, title and interest over 3.29 acres of schedule kha of the plaint.
       v. Is 3.29 acres of schedule Kha property is vested or non resident property;
      vi. Is the plaintiffs are entitled to a decree declaring that 3.29 acres of schedule Kha of the plaint is not a vested and nor resident property."
 
In the suit plaintiff examined 3 witnesses including plaintiff No.1 and exhibited certified copies of different khatians, rent receipts and Judgment and Decree of Title Suit No.77 of 1969. Defendant Nos.1-3 examine tahshildar of local Dalal bazar and also exhibited M.R.R. khatians and also V.P. lists exhibited as exhibits ka and kha series. Defendant Nos.4-10 examined defendant No.4 and other 2 witnesses and exhibited D.C.R, certified copies of V.P.S.P. and application filed for renewal of lease exhibited as Ka, kha and ga series.
 
Learned Subordinate Judge dismissed the suit which was affirmed by the learned Judge of the appellate Court.
 
Mrs. Sadia Rowshan Jahan, learned Advocate, appearing for the petitioners, submits that, both the Courts below committed gross illegality in dismissing the suit holding that judgment and decree on compromise obtained in Title Suit No.77 of 1969 by which plaintiffs derived their title was product of forgery without framing any issue to that effect. Learned Advocate further submits that the judgment of the appellate Court just carbon copy of the trial Court as such this judgment can not be sustainable as it is bad order, such type of judgment should be thrown out as learned Judge of the appellate Court did not apply his judicial mind.
 
Mr. S.S. Sarker, learned Deputy Attorney General, appearing for the opposite parties, submits that, the judgment of the appellate court is same of the trial Court. Learned Deputy Attorney General submits that it should not be kept on record and it should be set aside and appeal should be remanded to the learned Judge of the appellate Court for re-hearing.
 
On consideration of the judgment of the trial Court I find that learned Judge of the trial Court set aside the judgment passed in Title Suit No.77 of 1969 without framing any issue. It also appears that learned Judge did not at all consider the case of the plaintiffs, the question of binapatra and also learned Judge did not at all address to the different issues framed by him on the ground that plaintiffs' title has not been proved in Title Suit No.77 of 1969. On a reading of the judgment I find that 90% judgment relating to the judgment and decree passed in Title Suit No.77 of 1969. The appellate Court's Judgment I find just a copy of the trial Court judgment and according to me learned Judge totally did not at all applied his judicial mind in dispossing of the appeal. Order XLI rule 31 of the code of civil procedure speaks how and in what manner the judgment of the appellate Court should be written, law says it shall be in writing and shall state (a) the points for determination, (b) the decision thereon, (c) the reasons for the decision, and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
 
On a reading of the appellate Court's judgment I find that appellate Court's judgment totally a carbon copy the judgment of the trial court. This Judgment, I find totally disregard the provision of law as mentioned herein above. I also find that trial Court on the question of judgment and decree obtained in Title Suit No.77 of 1969 did not frame any issue as such the plaintiffs could not led any evidence to prove that said judgment was passed in accordance with law. Although I am not in favour of remand of any suit as it put litigant to further harassment but when judgment of the Court's below suffered from illegality I have no other option but to send the suit back on remand. I find substance in this rule.
 
In the result this rule is made absolute. No costs.
The Judgment and decree dated 10.6.2004 passed by the learned Additional District Judge, Lakshmipur in Title Appeal No.43 of 2001 affirming those dated 27.2.2001 passed by the learned Subordinate Judge, 1st Court, Lakshmipur in Title Suit No.40 of 1998 are set aside.
 
Title Suit No.40 of 1998 is sent back to the Court of the learned Subordinate Judge, 1st Court, Lakshmpur for a fresh trial after framing proper issue and allowing the parties to adduce evidence on the question whether judgment and decree passed in Title Suit No.77 of 1969 was passed legally or not.
 
Send down the lower Court records at once.
 
Communicate this order at once.    
 
Ed.