Asim Uddin & others Vs. Jakir Hossain, 3 LNJ (2014) 670

Case No: Civil Revision No. 1928 of 2010

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Sk. Md. Morshed,,

Citation: 3 LNJ (2014) 670

Case Year: 2014

Appellant: Asim Uddin & others

Respondent: Jakir Hossain

Subject: Burden of Proof,

Delivery Date: 2012-07-18


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Sheikh Abdul Awal, J.

Judgment on
18.7.2012
  Asim Uddin and others
. . . Petitioners
-Versus-
Jakir Hossain
... Opposite Party
 

Evidence Act (I of 1872)
Section 103
In the present case, the defendant opposite party neither in their written statement nor in their evidence claimed any ownership or right, title and interest in the land of ‘Kha’ schedule property of plaint and the plaintiffs’ petitioners also could not or did not prove that the defendant opposite party has been possessing the land in question as licensee successively. It is well settled that the burden lies on the plaintiff to prove his case and he must succeed on his own strength only not at the weakness of defendant....(28)

Mr. Sk. Md. Morshed, Advocate
...For the petitioners.
No one appeared.
...For the opposite party.

Civil Revision No. 1928 of 2010
 
Judgment
Sheikh Abdul Awal, J.
 
This Rule has been issued calling upon the opposite party to show cause as to why the judgment and decree dated 29.3.2010 passed by the learned Joint District Judge, 2nd Court, Dhaka in Title Appeal No.161 of 1992 dismissing the appeal and affirming the judgment and decree dated 28.3.1992 passed by the learned Assistant Judge, 5th Additional Court, Dhaka in Title Suit No.23 of 1990 dismissing the suit should not be set-aside.

Material facts of the case, briefly, are that on  11.5.1987  petitioners  as  plaintiffs instituted a suit being Title Suit No.88 of 1987 in the Court of Assistant Judge, 6th Court, Dhaka for ejectment of the defendant from the suit property as described in schedule 'Kha' of the plaint. The suit was subsequently re-numbered on transfer to the Court of Assistant Judge, 5th Court, Dhaka as Title Suit No. 23 of 1990. The case of the plaintiffs, in-short,  is that .0428 acres of land appertaining to C.S. Plot No. 174 under C.S. Khatian No. 16068 of Mouza-Sutrapur (Kotwali), Dhaka corresp-onding to  State Acquisition Khatian No.2339 , plot No.6221 was belonged to Oli Ullah, Mili Bibi, Chandi Bibi, Asmat Bibi and Lale Bibi.  Asmat Bibi and Lal Bibi had no son and they gifted their share to Oli Ullah and Mali Bibi and handed over possession to them.  Chandi Bibi died leaving behind Meli Bibi and Oli Ullah. Subsequently, the share of Meli Bibi was transferred to Oli Ullah and accordingly, Oli Ullah became the owner and possessor of the land under C.S. Plot No.174. The said Oli Ullah had a vacant cow shade on the east-south corner of the said plot as described in the Kha schedule of the plaint, who allowed one Ramij Uddin to sleep at night in the said cow shade out of sympathy. Later on, Oli Ullah renovated the cow shade for human living and the said Ramij Uddin was allowed to stay there as a permissive licensee with a condition that he will vacate the same, if necessary; that after the death of the said Ramij Uddin his son Alauddin was also allowed to stay there as a permissive licensee by the heirs of Oli Ullah out of sympathy; that Oli Ullah died leaving behind plaintiff Nos. 1 and 2 and Nashiruddin, wife, Pari Banu (plaintiff No.4) and one daughter Kalu Bibi.  After the death of Alauddin his son Zakir Hossain also took permission to reside there as licenses and in spite of objection raised by the plaintiffs on 5.5. 1987 the defendant-Zakir Hossain illegally constructed a building thereon. The defendant has no right, title and interest in the Kha schedule land of the plaint and hence, the suit.

The sole defendant-petitioner entered appearance in the suit and filed written statement denying most of the allegations of the plaint contending, inter-alia, that predecessor of the defendant Moksed Ali and his sister Raju Bibi got the pucca building on C.S plot No. 173 and ½ of the Bhiti and land of C.S. plot  No 175 by way of inheritance.  Moksed Ali died leaving 6 sons Rahimuddin, Ramijuddin and others and 1 daughter; that there was a small passage and katcha latirne on the southern portion of plot No. 174 for the inhabitants of C.S. plot No 173. Ramijuddin was given to possess the land of C.S. plot No. 173 by his other brothers, who (Ramijuddin) died leaving behind 7 sons Alauddin and others and one daughter. The heirs of Ramijuddin used to reside on the land of C.S. plot No. 173 except Alauddin, Municipality holding No. 33/1 was opened in the name of Ramijuddin for katcha house on C.S. plot No. 175,  Alauddin constructed a 2 storied house there and died leaving one son (defendant)  and 2 daughters and wife, who are residing there paying rent and taxes to the Government regularly.  The defendant for his business purpose converted his residence into workshop and a betel-nut shop and has been possessing the 'kha' schedule land through tenant. The 'kha' schedule land does not attract with the land of C.S. plot No.174 and as such, the suit is liable to be dismissed.

At the trial both the parties led evidence to prove their respective cases.
The learned Assistant Judge on consideration of the facts and circumstances of the case and evidence on record dismissed the suit by his judgment and decree dated 28.3.1992 holding that the plaintiffs  having failed to prove that the defendant  has been possessing the suit land as a permissive  licensee.
Unsuccessful plaintiffs, thereafter, preferred Title Appeal No.161 of 1992 in the Court of District Judge, Dhaka. Eventually, the said appeal was transmitted to the Court of Subordinate Judge, Commercial Court No.2, Dhaka who by judgment and decree dated 25.09.2997 dismissed the appeal and affirmed the judgment of the trial Court dismissing the suit.

Against which the plaintiff-petitioners preferred Civil Revision No.626 of 1998 to this Court.  Ultimately, a single bench of this Court by judgment and order dated 7.7.2009 remanded the case to the Court of appeal below after setting-aside the judgment and decree dated 25.9.1997 passed by the then Subordinate Judge, Commercial Court No.2, Dhaka with a direction to consider the report of the Advocate Commissioner regarding position of the suit property as well as evidence and materials on record.

In this backdrop   the Court of appeal below again on perusal of the evidence and materials record and upon hearing both the parties by the impugned judgment and decree dated 29.3.2010 (decree signed on 4.4.2010) dismissed the appeal and affirmed the judgment and decree of the trial Court dated 28.3.1992 holding that the plaintiffs could not prove their case by adducing evidence that the defendant has been possessing the land in question as   licensee under them.

Being aggrieved by the aforesaid judgment and decree dated 29.3.2010 the present plaintiff-petitioners moved this Court and obtained the present Rule.

Mr. Sk. Md. Morshed, the learned Advocate appearing for the petitioners after placing the judgments of both the Courts below and other materials on record including the evidences of PWs and DWs submits that both the Courts below having failed to consider that the plaintiff-petitioner filed the suit for ejectment of the defendant licensee from the 'Kha' schedule property of  the plaint i.e. C.S. Plot No.174 and recovery of khas possession and in the said suit the defendant-opposite party neither in  their written statement nor in their oral evidence claimed any right, title or adverse possession over the 'Kha' schedule land. Mr. Morshed in the course of his argument upon referring the judgments of both the Courts below argues that both the Courts below on assessment of the evidences on record found that the plaintiff-petitioners during trail exhibited a series of documents to prove that their predecessor was the owner of C.S. Plot No.174 but both the Courts below without assigning any sound reason whatsoever arrived at a finding that the plaintiff could not or did not prove his case beyond doubt. He further submits that judgments of both the Courts below are perverse being contrary to law and materials on record inasmuch as the defendant-opposite party  in their written statement specifically stated that their right, title and interest is not related in any way  with 'Kha' schedule land of the plaint and none of the DWs. in their respective deposition claimed any right, title and interest over the 'Kha' schedule land but the Courts below ignoring these aspects of the case including vital exhibits namely, C.S. Khatian (Ext.1), S. A. Khatian (Ext.1 (Ka), R.S. Khatian (Ext.X), rent receipt (Ext.2) and Municipality tax receipt (Ext.3) abruptly arrived at a finding that the plaintiffs have  failed to prove their case.

Drawing my attention to the judgment of this Court dated 7.7.2009 passed in Civil Revision No.626 of 1998 Mr. Morshed submits that the case was remanded by this Court to the Court of appeal below with a specific direction to consider the report of the Advocate Commissioner regarding position  of the suit property but the learned  judge of the lower appellate Court without applying its judicial mind into the facts and circumstance of the case as well as direction of this Court most illegally without considering the Advocate Commissioner's report by the impugned judgment  mechanically dismissed the appeal in a summary manner which resulted in the failure of justice.

Mr. Morshed,  further upon placing the Advocate Commissioner’s report submits that in the facts and circumstance of the case the Court of appeal below ought to have considered the Advocate Commissioner report to arrive at a correct decision and in not doing so, the Court of appeal below seriously erred in law in passing the impugned judgment  without properly applying his judicial mind into the facts and circumstances of the case and the same has resulted in an error in the impugned decision occasioning failure of justice. Mr. Morshed,  finally submits that findings of the Court of appeal below so far it relates to adverse possession of the defendant-opposite party  are  not only misconceived also contrary to the material evidence on record inasmuch as there is  nothing on record to suggest that the defendant-opposite party  having claimed their right, title and interest over the 'Kha' schedule land by way of adverse possession and as such, at any rate  the impugned judgments of both the Courts below are liable to be set-aside.

No one entered appearance to contest the Rule.
I have heard the learned Advocate for the petitioners at length and perused the materials on record including the judgments of both the Courts below and the deposition of PWs. and DWs. The main point for consid-eration is, as already noticed, whether the Courts below committed wrong in holding that the plaintiffs having failed to prove their case that the predecessors of the sole defendant as well as the defendant were allowed by the plaintiffs to possess their ‘kha’ schedule land as a permissive licensee.
In deciding this point, I feel it necessary to quote hereunder paragraph No.1 of the plaint which reads as follows:-
"অত্র আদালতের এলাকাধীন জেলা ঢাকার কোতয়ালী হালে সুত্রাপুর থানাধীন ১৬০৬৮ নং সি, এস, খতিয়ানভুও্র ১৭৪ নং দাগে কাঁচা বাড়ী মোট ০৪২৮ অজুতাংশ যাহার এস, এ, খতিয়ান নং- ২২৩৯, দাগ নং-৬২২৫ ভুও্র সম্পত্তির অলিউল্যা। ১০ গন্ডা মেলা বিবি চাদী বিবি আছমত বিবি ও লালে বিবি গন্ডা অংশে মালিক দখলকার স্বত্ববান নিয়ত হইয়া ও থাকিয়া ভোগদখল করিতে থাকেন এবং বিগত সি,এস, জরীপে তাহাদের নাম ও অংশ শুদ্ধভাবে রেকর্ড ভুক্ত হয়"

From a plain reading of the above quoted paragraph No.1 of the plaint together with the prayer portion as well as schedule 'Kha' of the plaint, it demonstrates that the petitioners as plaintiffs instituted a suit being Title Suit No.88 of 1987 in the Court of  Assistant Judge, 5th Court, Dhaka against the sole defendant-opposite party praying for ejectment of licensee  from the suit property as described in 'Kha' schedule of the plaint i.e. .0428 acres of land appertaining to C.S.  khatian No. 16068, C.S. Dag No. 174  under  Mouza-Sutrapur, Kotwali, Dhaka.

Let me now advert to the evidence of PWs and the DWs.

PW-1, Md. Ashim Uddin in his deposition stated that: নালিশী জমি সি,এস, ১৭৪ দাগ এর মোট জমির পরিমান ৪২৮ অজুতাংশ। এই সম্পত্তির মুল মালিক ছিলেন আমার বাবা। উও্র সি,এস, রেকর্ড দাখিল করিলাম প্রদর্শনী-১ এস,এ খতিয়ান আমাদের নামে প্রস্তুত হয়। প্রদর্শনী ১ক নালিশী ভুমির আর,এস, রেকর্ড দাখিল করিলাম।  PW-2, Md. Nazimuddin and PW-3, Md. Zamal, both these witnesses in their respective deposition corroborated the evidence of PW-1 in respect of all material particulars.

DW-1, Md. Zakir Hossain as sole defendant of the  suit stated in his deposition that, .........আমাদের বাড়ীর জমি এবং বাদীর জমি পৃথক।...............আমাদের ১৭৫ দাগে বাদীদের অংশ নহে। This witness in his cross-examination stated that ১৭৪ দাগের পূর্ব দিকে নালিশী বাড়ী। আমরা ১৭৫ দাগের .০০২৫ অযুতাংশে র মালিক। ১৭৫ দাগে আমার দাদার নামে রেকর্ড আছেz DW-2, Md. Selim in his deposition stated that he is a tenant of defendant  being  holding No. 33/1. This witness in his deposition stated nothing with regard to property under C.S. Khatian No. 16068 and Dag No. 174.

The present opposite party as sole defendant in his written statement clearly stated that বাদীর দাবীকৃত "খ" তপসিল বর্ণিত সম্পওির সহিত বিবাদীর স্বত্ব দখলীয় সম্পত্তির কোন সম্পর্ক নাই। এই বিবাদীকে অযথা হয়রানী করার জন্য অত্র মিথ্যা মামলা দায়ের করিয়াছে।

From the above quoted evidence together with the material portion of the written objection, it transpires that the defendant-opposite party  did not at all claim the property in question as described in the  “kha” schedule  of the plaint i.e. C.S. Khatian No. 16068 and Dag No.174. My, view is, therefore, that both the Courts below after detailed discussion of the entire materials on record rightly arrived at a concurrent finding that the plaintiff-petitioners having failed to prove that the defendant-opposite party has been possessing the suit property as licensee under plaintiff-petitioners.

On query from the Court, Mr. Morshed, the learned Advocate expressed his inability to show any scarp of paper to prove that the predecessors of the sole defendant or defendant-opposite party were/was licensee of the plaintiff-petitioners. Therefore, in the facts and circumstance of the case, I am led to hold that both the Courts below committed no illegality in holding that the plaintiff-petitioners could not prove their case beyond doubt.

Now, it remains for me to consider the main argument of Mr. Morshed that the Court of appeal below in the facts and circumstance of the case without considering the Advocate Commissioner's report committed gross illegality in dismissing the appeal. As I have already noticed that this Court earlier by its judgment and order dated 7.7.2009 passed in Civil Revision No. 626 of 1998 remanded   the case to the Court of appeal below with a direction to consider the Advocate Commissioner report regarding the position of the suit property as well as evidence namely oral and documentary evidence of both the sides.

The trial Court below on assessment of the evidence on record arrived at a finding that:- এ-প্রসংগে বাদীপক্ষের ১ নং সাক্ষী স্বয়ং ১ নং বাদী তাহার জেরাতে উল্লেখ করেন যে, নালিশী সহানে এই বিবাদী ১০/১২ বৎসর পূর্বে  দোতলা ভবন নির্মান করেন এবং রাস্তা চালু হবার সময় ভবনের কিয়দংশ ভাংগা হয়। সুতরাং স্বীকৃতায় বহু পূর্বেই বিবাদী নালিশী সহানে দোতলা ভবন নির্মান করেন। বিবাদীর প্রদর্শনীকৃত কাগজাদিতে দেখা যায় যে, পৃথক ভাবে এই বিবাদী বিভিন্ন সংযোগাদী  গ্রহন পূর্বক দীর্ঘদিন যাবত নালিশী হোল্ডিংয়ে বসবাস রত আছেন। উপরন্তু প্রদর্শনী- ৪ যাহা এডভোকেট কমিশনারের তদন্ত প্রতিবেদন তাহাতে নালিশী দাগের সহিত ১৭৫ সি, এস, দাগ সংযুও্র এবং একত্রে দেখানো হইয়াছে। উপরোক্ত অবসহাধীনে সহজেই প্রতীয়মান হয় যে, এই বাদীগন নালিশী সম্পত্তিতে বিবাদীকে অনুমতি প্রাপ্ত হিসাবে প্রমানে সমর্থ হন নাই।

From the above, it appears that the trial Court below on due consideration of the entire materials on record including the Advocate Commissioner’s report arrived at a finding that the plaintiff could not prove their  case that the defendant-opposite party has been possessing the suit land as  licensee under the plaintiff-petitioner.

The Court of appeal below in its turn by the impugned judgment  affirmed the judgment of the trial Court below with the following observation  that: বাদীর দাবী প্রতিপুর্রষ অন্তর অন্তর বিবাদীগন লাইসেন্স এর বিষয়টি নবায়ন করে নালিশী ভূমিতে দখল পরিচালনা করে আসছে। প্রাথমিক বিবেচনায় ঢাকা শহরে একখন্ড জমিতে কোন ব্যক্তি ৩ পুর্রষ ধরে অন্য একটি পরিবারকে বসবাসের জন্য অনুমতি প্রদান করে যাবেন- এটি বিশ্বাসযোগ্য নয়। সাক্ষ্য পর্য্যালোচনায় দেখা যায় এধরনের লাইসেন্স দেয়ার  সমর্থনে বাদীপক্ষ গ্রহন যোগ্য কোন সাক্ষ্য আদালতে উপস্থাপন করেননি।

It is true in passing the impugned judgment the Court of appeal did not discuss clearly about the Advocate Commissioner's report. But from the materials on record it appears it appears that the materials on record justify the order. It is now well settled that omission to assign reasons in the impugned order is not fatal, if in law the order is sustainable. So it is a mere irregularity not an illegality and the impugned judgment cannot be knocked down on that count. Therefore, I am not inclined to disturb with the impugned judgment and decree.

Law is well settled that the burden lies on the plaintiff to prove his case and he must succeed on his own strength only not at the weakness of defendant. In the present case, I have already indicated that  defendant-opposite party neither  in their written statement nor in their evidence claimed  any ownership or right, title and interest in the land  of “kha” schedule  property of the plaint (C.S. Khatian No. 16068 and Dag No.174) and on the other hand, the plaintiff-petitioners also could not or did not prove that the defendant-opposite party has been possessing the land in question as  licensee successively under them by adducing any reliable or documentary evidence. So, I find no substance in either of the contentions as raised by the learned Advocate for the petitioners.

On an overall consideration of the facts, circumstances and the materials on record, I find nothing on record to suggest that the defendant has been possessing the suit land as licensee of the plaintiff-petitioners. There is practically no evidence, either documentary or circumstantial that the defendant-opposite party has been possessing the land in question as licensee. It appears that the learned Judge of the trial has exhaustively dealt with the questions raised before it and quite correctly found the plaintiffs could not prove their claim. Therefore, I do not find any possible reason to differ with the view taken by both the Courts below that the plaintiff-petitioners having failed to prove their case beyond doubt.

Here it may further be mentioned that the cases relied upon by the petitioners have also no manner of application in the facts and circumstance of the case as the facts of the instant case are quite distinguishable from the facts of those cases.

In the result, the Rule is discharged without any order as to costs. The order of status-quo granted earlier by this Court stands vacated.

Let a copy of the judgment along with the lower Court's record be sent down at once.

Ed.