Bangladesh and others Vs. Md. Abdul Haque [4 LNJ (2015) 538]

Case No: Civil Revision No. 542 of 2003

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. Manzur Al Matin,Mr. Md. Khalilur Rahman,,

Citation: 4 LNJ (2015) 538

Case Year: 2015

Appellant: Bangladesh and others

Respondent: Md. Abdul Haque

Subject: Limitation,

Delivery Date: 2015-04-13


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Borhanuddin, J


Judgment on
13.04.2015
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Government of Bangladesh, represented by Deputy Commissioner, Mymensingh and others
.... Petitioners
-Versus-
Md. Abdul Haque 
... Opposite Party
 
Limitation Act (IX of 1908)
Article 149
The appellate court below after reassessing the evidence on record arrived at a finding that the trial court rightly found that the exhibit ‘2’ filed by the plaintiff in support of his claim in the suit land is forged one but did not consider the legal aspect that plaintiff is in possession of the suit land from the period of his predecessor for more than 60 years and as such acquired a valid title in the suit land by way of adverse possession. I do not find any reason to interfere with the finding of the appellate court below that the plaintiff has acquired a valid title in the suit land through adverse possession. ...(10 and 16)

Salma Khatun and others Vs. Zilla Parishad, Chittagong, 51 DLR(AD) 257; Budhu and others Vs. Ghulam Shah, 15 DLR (SC) 315; Mahaprabhu Ram Vs. Gopal Ram Ram and others, 42 DLR (AD) 154; Gouri Das and others Vs. ABM Hasan Kabir and others, 55 DLR (AD) 52 and Budhu and others Vs. Ghulam Shah, 15 DLR (SC) 315 ref.
 
Mr. Md. Khalilur Rahman, A. A. G
. . . For the Petitioner
Mr. Mahmudul Islam with
Mr. Manzur Al Matin, Advocates
..... For the Opposite Party 

Civil Revision No. 542 of 2003

JUDGMENT
Borhanduddin, J.

This rule has been issued calling upon the opposite party to show cause as to why the impugned judgment and decree dated 29.11.2001 passed by the learned Joint District Judge, 3rd Court, Mymensingh, in Title Appeal No. 76 of 2000 allowing the appeal and thereby reversing the judgment and decree dated 09.03.2000 passed by the learned Assistant Judge, Muktagacha, Mymensingh, in 0ther Class Suit No.30 of 1993 dismissing the suit, should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.

Facts relevant for disposal of the rule are that the opposite party herein as plaintiff instituted Other Class Suit No.30 of 1999 in the Court of learned Assistant Judge, Muktagacha, Mymensingh, for declaration of title contending interalia that the suit land originally belonged to Zemindar Shashi kanta acharja chowdhury; Plaintiff’s father took settlement of the suit land on 7th Jaista 1344 B. S. from Zemindary Sheresta on payment of taka 100/- as Salami and since then possessed the suit land by erecting homestead and digging pond therein; After his expiry, plaintiff has been living therein with his family; Plaintiff’s father paid rent to the Zemindary Sheresta and subsequently paid rents to the Government exchequer; Plaintiff’s father possessed the suit land uninterruptedly for more than 12 years and thus acquired a valid title by way of adverse possession; though the defendants have no manner of title and possession but the suit land wrongly recorded as khas land in the R.S. Khatian; Plaintiff came to know about the wrong recording on 12.09.1999 from Tahsil 0ffice and constrained to file this suit.

Defendant no.2 contested the suit by filing a written statement contending interalia that the suit is barred by the principles of waiver, estoppel and acquiscence; not maintainable in its present form. Case of the defendant is that after abolition of Zemindari system, suit land has been vested to the government by operation of law and since then government has been possessing the suit land; R. S. khatian rightly prepared in the name of Government.
After hearing the parties, learned Assistant Judge dismissed the suit by his judgment and decree dated 09.03.2000 and 20.03.2000 respectively. 

Being aggrieved, the plaintiff as appellant preferred Title Appeal no.76 of 2000 in the Court of learned District Judge, Mymensingh, which was ultimately heard and disposed of by the learned Joint District Judge, 3rd Court, Mymensingh, who after hearing the parties and perusing the record has been pleased to allow the appeal vide judgment and decree dated 29.11.2001 and 05.01.2002 respectively by setting aside the judgment and decree passed by the learned Assistant Judge.

Having aggrieved by and dissatisfied with the judgment and decree, the defendant-respondents as petitioners preferred this application under Section 115(1) of the Code of Civil Procedure and obtained the present rule.

Mr. Md. Khalilur Rahman, learned Assistant Attorney General, appearing for the petitioners submits that the trial court after assessing the evidence on record arrived at a finding that the ‘Hukumnama’ dated 7th Jaishta 1944 B. S. is forged one and created only to grab the suit land, though appellate Court below affirmed the finding but erroneously allowed the appeal on a finding that the plaintiff-opposite party has been possessing the suit land since his predecessor for more than 60 years and thus acquired title by way of adverse possession without considering the legal aspect that a person is not entitled to declaration of title through adverse possession when claiming title through rayoti settlement. In support of his submission, learned advocate referred to the case of Salma Khatun and others -Vs- Zilla Parishad, Chittagong, represented by its Secretary and another, reported in 51 DLR (AD) 257.

On the other hand, Mr. Mahmudul Islam with Mr. Manzur Al Matin, learned advocates appearing for the opposite party submits that both the courts below arrived at a findings that the plaintiff is in possession of the suit land but the trial court arrived at a finding that possession of the plaintiff is not legal because the plaintiff claiming title in the suit land by a forged document without considering that the plaintiff clearly stated in paragraph no.2 of the plaint that his father possessed the suit land uninterruptedly for more than 12 years by erecting houses and digging pond therein and after expiry of his father the plaintiff has been living therein with his family. He also submits that when a person made statement of a fact in the plaint, he is entitled to rely upon that fact in support of the relief which he claims and as such the appellate court below rightly passed the impugned judgment and decree holding that the plaintiff acquired title through adverse possession. He next submits that the plaintiff made statement of adverse possession in the plaint and also proved the same by adducing oral and documentary evidence that his father possessed the suit land uninterruptedly for more than 12 years and thereafter he has been living therein with his family. He further submits that the plaintiff claiming title through settlement and also through adverse possession, both the prayers are not inconsistent with each other, there is no bar to a person relying upon more than one alternative source of title. In support of his submissions, learned advocate referred to the case of Budhu and others-Vs- Ghulam Shah, reported in 15 DLR (SC) 315, the case of Mahaprabhu Ram-Vs- Gopal Ram Ram & others, reported in 42 DLR (AD) 154; the case of Gouri Das and others- Vs- ABM Hasan Kabir and others, reported in 55 DLR (AD) 52 and an unreported judgment dated 13.11.2014 passed by our apex Court in the case of Mosharaf Hossain Chowdhury (Kanchan) -Vs- Habibur Rahman and others, in Civil Appeal No.213 of 2007.  
Heard the learned advocates. Perused the lower Court’s record and decisions cited by the learned Advocates.

On perusal of the plaint it appears that the plaintiff claiming title in the suit land through settlement from Zemindary Sheresta in favour of his father vide hukumnama dated 7th Jaishta 1344 B.S. and also claiming title through adverse possession stating in the plaint that his father possessed the suit land by erecting houses and digging ponds therein uninterruptedly for more than 12 years and thereafter plaintiff has been living therein with his family. The trial court though found that the plaintiff is in possession of the suit land but held that the possession is illegal inasmuch as exhibit-2 i.e. ‘hukumnama’ dated 7th Jaishta, 1344 B. S. is a forged one. Learned Assistant Judge also arrived at a finding that the plaintiff when claiming title in the suit land through settlement he cannot set up a claim of adverse possession. The appellate court below after reassessing the evidence on record arrived at a finding that the trial court rightly found that the exhibit ‘2’ filed by the plaintiff in support of his claim in the suit land is forged one but did not consider the legal aspect that plaintiff is in possession of the suit land from the period of his predecessor for more than 60 years and as such acquired a valid title in the suit land by way of adverse possession.

It appears that the plaintiff adduced five witnesses in support of his claim and all of them stated that the plaintiff has been possessing the suit land uninterruptedly from the period of his father.

In the case of Budhu and others-Vs-Ghulam Shah, reported in 15 DLR (SC) 315, their lordships held:

“ When a person makes a statement of a fact in the plaint he is entitled to rely upon that fact in support of the relief which he claims and it is not necessary for him to say in the plaint in so many words that he relies upon it.”
Their lordships also held:
“There is no bar to a person relying upon more than one alternative source of title. An alternative case should be distinguished from an inconsistent case. No two facts can be said to be inconsistent with each other if both could happened.”

In the unreported judgment dated 13.11.2014 passed in Civil Appeal No.213 of 2007, our apex court held:

“In paragraph -3 of the plaint, the plaintiffs stated in no uncertain terms that their predecessor, Safar Ali Majumder had been in possession of the suit property for more than 12 years and as such, he had also acquired title to the suit property on the basis of adverse possession.”

It also appears that though defendant no.2 contested the suit by filing written statement but did not examine himself or any witness to support his contention, even did not file any documents/papers. Their only contention as stated in the written statement that after abolition of the Zemindary system the suit land vested with the Government by operation of law but no where it is stated that how or through whom Government possessing the suit land.
Both the Courts’ below found that the plaintiff has been possessing the suit land. A person in possession of land has a good title against the whole world except the person with title. 

Under the facts and circumstances of the case and for the reasons stated hereinabove, I do not find any reason to interfere with the finding of the appellate court below that the plaintiff has acquired a valid title in the suit land through adverse possession.

Accordingly, the rule is discharged.

Impugned judgment and decree dated 29.11.2001 passed by the Joint District Judge, 3rd Court, Mymensingh, in Title Appeal No.76 of 2000 allowing the appeal, is hereby maintained.

Send down the lower court records alongwith a copy of this judgment to the court concern at once.

Ed.