Bangladesh Vs. Md. Ali Ashraf Khondoker & ors., (Md. Moinul Islam Chowdhury, J.)

Case No: Civil Revision No. 3849 of 2010

Judge: Md. Moinul Islam Chowdhury, J

Court: High Court Division,

Advocate: Mr. Md. Ensan Uddin Sheikh, A.A.G. with Ms. Afifa Begum, A.A.G.,

Citation: 2019(2) LNJ

Case Year: 2019

Appellant: Government of the People’s Republic of Bangladesh Represented by the Deputy Commissioner Sirajgonj

Respondent: Md. Ali Ashraf Khondoker and others

Subject: State Acquisition and Tenancy Act

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Moinul Islam Chowdhury, J

 

 

Judgment on

07.03.2018

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Government of the People’s Republic of Bangladesh Represented by the Deputy Commissioner Sirajgonj

. . . Defendant-Respondent -Petitioner

=Versus=

Md. Ali Ashraf Khondoker and others

. . . Plaintiffs-Appellant-Opposite Parties

State Acquisition and Tenancy Act (XXVIII of 1950)

Section 86

Section 86 Sub-Section 2 before amendment was that suit land would be considered as alleviated and remained under water for more than 20 years prior to the amendment of Act 1950 Sub-Section 4. However, after amendment of the said Section 86 in the year of 1994 the time period has been fixed that an owner of the land could only loose the right by diluvion if such land reappeared within 30 years. In the instant case the present Government petitioner claimed that the suit land was alleviated around the year of 1982 from river Fuljor, as such, the provision before amendment in the year of 1994 would be applicable which was earlier 20 years for the period of diluvion and aluvion. Therefore as the land was diluviated in the year of 1956 and alleviated in the year of 1982 the land remained under water for more than 26 years which is beyond 20 years period of time, as such, the record of right in S.A. and R.S. in the name of Government as khas Khatinan No. 1 has been done as per the operation of law and the present plaintiff opposite parties lost their right and title by the said provisions of law.    . . .(18)

Mr. Md. Ensan Uddin Sheikh, A.A.G. with

Ms. Afifa Begum, A.A.G.

. . .For the Petitioner

Mr. Md. Asaduzzaman with

Mr. Md. Anisul Hassan with

Ms. Farhana Islam Khan with

Mr. Md. Salequzzaman and

Mr. Abdullah-Al- Mahmud, Advocates

. . .For the Opposite Party Nos. 1-5

JUDGMENT

Md. Moinul Islam Chowdhury, J: At the instance of the present defendant-respondent petitioner, Government of the People’s Republic of Bangladesh Represented by the Deputy Commissioner, Sirajgonj, this Rule has been issued calling upon the opposite parties to show cause as to why the judgment and decree dated 05.04.2007complained of in the petition moved in court should not be set aside.

2.             The Rule is directed against the judgment and decree dated 05.04.2007 passed by learned Joint District Judge, 1st Court, Sirajgonj in Other Class Appeal No. 53 of 2004 allowed the appeal reversing the judgment and decree dated 29.02.2004 passed by the learned Assistant Judge, Raygonj Assistant Judge Court, Sirajgonj in Other Class Suit No. 90 of 2002.

3.             The relevant facts for disposal of this Rule, inter-alia, are that the present opposite parties as the plaintiffs filed the Other Class Suit No. 90 of 2002 in the court of learned Assistant Judge, Raygonj, Sirajgonj for declaration of title upon the land describe in the schedule of the plaint. The case in the plaint is that the suit land appertaining to C.S.  Khatian No. 99 as describe in the plaint as schedule ‘Ka’ and the land in D.S. Khatain No. 101 describe in the plaint as schedule ‘Kha’ was originally owned by the predecessors of the plaintiffs. The C.S. record of right was published and the plaintiffs have been in possession upon the land measuring 3.49 acres in D.S. Plot Nos. 1003, 1458 and 968. Under C.S. Khatian No. 101 but during S.A. operation some portion of plaintiffs land was not recorded properly and during R.S. operation the property was recorded in the name of the present defendant petitioner, the Government of Bagnaldesh, as such, as the plaintiffs filed the suit claiming entitlement upon the entire land.

4.             The present petitioner as the defendant No. 1 and another defendant No. 2 contested the suit by filing a written statement contending, inter-alia, that after the C.S. record of right the suit land described in the plaint as schedule ‘Gha’ became diluviated which was subsequently alluviated, as such, under the operation of law the suit property was vested upon the Government, accordingly, the land was properly and correctly recorded in the name of Government during R.S. operation. The present opposite party filed the suit by creating some false documents in order to grab the Government land which has been under possession through allotment to the landless people.

5.             After hearing the parties and considering the documentary evidence as well as the deposition of the witnesses on behalf of the respective parties dismissed the suit by the judgment and decree dated 29.02.2004. Being aggrieved the present opposite parties as the appellants preferred the Other Class Appeal No. 53 of 2004 in the court of learned District Judge, Sirajgonj which was heard by the learned Joint District Judge, court No. 1, Sirajgonj who by his judgment and decree dated 05.04.2007 allowed the appeal by reversing and setting aside the judgment and decree of the trial court. This revisional application has been filed under Section 115 (1) of the Code of Civil Procedure challenging the legality of the said impugned judgment passed by the appellate court below and the present Rule was issued thereupon.

6.             Mr. Md. Ensan Uddin Sheikh, the learned Assistant Attorney General, appearing with the learned Assistant Attorney General, Ms. Afifa Begum, submits that the learned lower appellate court committed an error of law occasioning failure of justice in not considering that the S.A. and R.S. record of the suit land was correctly prepared in the name of the Government within the knowledge of all concern and the plaintiffs never came before the court of settlement for correcting those record and as such the impugned judgment is liable to be s et aside.

7.             The learned Assistant Attorney General further submits that the learned trial court came to a lawful conclusion to dismiss the suit filed by the present opposite parties upon the given facts that the suit land was diluviated and became river Fuljor around the year of 1956. The  river was thereafter alluvited around the year of 1982(after 20 years) therefore, pursuant to Sections 86 and 87 of the State Acquisition and Tenancy Act, 1950 and also pursuant to the President Order No. 135 of 1972 the suit property was vested upon the present Government-petitioner. Accordingly, land was recorded in the R.S. Khatian No. 1 in the name of Government as the Khash land. As such, the learned court came to a lawful conclusion to dismissed the suit whereas the learned appellate court without considering the document produced by the present petitioner- Government regarding diluvion and alluvion of the suit land came to a wrongful conclusion because the plaintiffs failed to prove their own case, as such, this court should interfere upon the impugned judgment and the Rule should be made absolute.

8.             The Rule has been opposed by the present opposite parties.

9.             Mr. Md. Asaduzzaman, the learned Advocate, appearing with the learned Advocates Mr. Md. Anisul Hassan, Ms. Farhana Islam Khan, Mr. Md. Salequzzaman and Mr. Abdullah-Al- Mahmud, for the opposite parties, submits that the learned  trial court considered that the present opposite parties lawfully succeeded the land and there was no bar to filed the suit under the limitation period but wrongfully found that the plaintiff did not take appropriate steps for proving continuation of title and the record of right in C.S. Dag Nos. 99 and 101 upon the land measuring 2.80 acres along with the other land which were not diluviated under river Fuljor in District Sirajgonj. However, the learned appellate court below properly found that there was no diluviation of the suit land as other neighboring plots were in the name of other private persons. Therefore, including the scheduled property under S.A. and  R.S. Khatian No. 1 as the Government Property was absolutely wrong on the part of the Government, as such, the record of right published in the name of Government of the suit land was absolutely misconceived and  incorrect and the learned appellate court passed the impugned judgment and decree on the basis of law and this court should not interfere upon the impugned judgment and decree and the Rule should be discharged.

10.          The learned Advocate further submits that the present opposite parties produced Exhibits-3 and 3(Ka) in the appellate court under Order 41 Rule 27 of the Code of Civil Procedure, therefore, the learned trial court did not have any chance to examine those vital documents, thus, the record of right in S.A. and R.S. in favour of the Government under Section 86 of the State Acquisition and Tenancy Act. A property can only be vested after 30(thirty) years from the date of diluviation but the present petitioner-Government claimed that suit land was alluviated in the year of 1982 which is less than 30 years, as such, the learned trial court committed an error of law regarding diluviation, whereas, the learned appellate court came to a correct decision.

11.          Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court and also after perusal of the materials in   the lower court records, it appears to me that the present opposite parties as the plaintiffs filed the title suit for declaration of title upon the suit land described in the schedule of the plaint. The plaintiffs case was that one Hanif Uddin Khondoker was    the C.S. recorded owner of land measuring 10.46 acres who died leaving behind his son Harun Uddin Khondoker who also died leaving behind 5 sons being Rawsan Ali and others. By way of succession and purchase the plaintiffs became owners but in the S.A. and R.S. record the land was recorded in the name of the present petitioner-Government, as such, the suit was filed challenging the publication of record of right which was clouded their entitlement. On the other hand, the present petitioner as the defendant contended that in the C.S. record the suit land was in the private names but during the operation of S.A. record the suit land was diluviated and turned into the river Fuljor and the land remained under water for a long period of time. However, S.A. record of right was published in the name of the than Purba Pakistan province represented by Collector of Pabna (exhibit-Ka) accordingly R.S. record of right was published in the name of Government sometime after 1982 when the suit land was alluviated and R.S. record of right in the name of the present petitioner-Government (exhibit-“Ka-1”), therefore, the present plaintiffs opposite parties do not have any right and title upon the suit land.

12.          In view of the above conflicting factual aspects between the parties, this court has to take a legal decision in the case as to the entitlement of the suit land described in the plaint. In this regard I have carefully examined and considered the documents adduced and produced by the parties in support of their respective cases. There is no dispute that C.S. recorded tenant Hanif Uddin Khondoker and his son Harun Uddin Khondaker was C.S. recorded tenant but the land became subject matter of diluviation around the year of 1956 and the land turned into the river Fuljor and the land remain undered water. However the present plaintiff-opposite parties claimed that the land of C.S. Khatian Nos. 99 and 101 being Dag No. 1458, 1003 and 968 total land measuring 3.49 acres were not subject matter of diluviated and they remained in possession.

13.          However, I found difficulty as to possession of the present opposite parties upon the suit land as there is no payment of Khajna or any other documents for proving the possession upon the suit land by the present plaintiff opposite parties. In this regard the government petitioner claimed that the land was under water since 1956, as such, no question arises for possession by the present plaintiff opposite parties.

14.          However, the Government could prove that the land was under water, as S.A. record was published in the name of petitioner-Government. In addition to S.A. record of right, R.S. record of right was also consistently published in the name of the Government petitioner which is the relevant document to show that the land was diluviated and it was alluviated after the year of 1992 when Section 86 (3) of the State Acquisition and Tenancy Act and President Order No. 135 of 1972 remained as the operative  and prevailing law.

15.          Under Section 86 of the Act, 1950, the Government acquired right by operation of law of any land which is subject to diluvion and allevion. Accordingly, Section 86 sub- Section 1 and 2 of the Act, 1950 are relevant in the present case which reads as follows:

“1[86. Abatement of rent on account of  diluvion and determination of right in land re-appeared on account of alluvion-(1) If the lands of a holding or a portion of such lands are lost by diluvion, the rent or the land development tax of holding shall, on application or intimation made by the tenant in the prescribed from to the Revenue officer, be abated by such amount as may be considered by the Revenue officer  to be fair and equitable in accordance with the rules made in this behalf by the Government and the act of such loss by diluvion shall be recorded in accordance with such rules, which shall be treated as proof of title to the lands when the same re-appear in situ.

(2) Notwithstanding anything contained in any other law for the time being in force, the right, title and interest of the original tenant or his successor-in-interest shall subsist in the lands or a holding or portion thereof during the period of loss by diluvion if such lands re-appear in situ within thirty years of their loss. ”   

16.          In addition to the above law after liberation of  Bangladesh  Order No. 3 of the President Order No. 135 of 1972 also provided provisions for alluvion and diluvion which reads as follows:

“(3)All lands, so lost by diluvion under sub-section (2), which re-appeared before the date of commencement of the said Order, but in respect of which the right of the tenant,  whose land was so lost or his successors-in-interest, to re-possession was not finally recognized or declared by a competent authority or Court under any law for the time being in force and also all lands, so lost by diluvion under the said sub-section, which may be re-appear on or after the said date, shall vest absolutely in the Government free from all encumbrances and shall be at its disposal.”

17.          In view of the above two provisions of law, I have examined the present case and found that the plaintiff opposite parties could not  prove absolute possession upon the suit land by way of inheritance because the suit land was subject matter of diluvion and alluvion the plaintiffs do not have any entitlement upon suit land. In this regard, the Government-petitioner produced Exhibit-Ka and Exhibit-(Ka)1 as to the record of right in S.A. and R.S. therefore it can be taken that the land was subject to diluvion and alluvion.

18.          Now, the question is whether the plaintiffs have lost their entitlement only because of diluvion and alluvion. In this regard Section 86 Sub-Section 2 before amendment was that suit land would be considered as alluviated and remained under water for more than 20 years prior to the amendment of Act 1950 Sub-Section 4. However, after amendment of the said Section 86 in the year of 1994 the time period has been fixed that an owner of the land could only loose the right by diluvion if such land reappeared within 30 years. In the instant case the present Government petitioner claimed that the suit land was alluviated around the year of 1982 from river Fuljor, as such, the provision before amendment in the year of 1994 would be applicable which was earlier 20 years for the period of diluvion and alluvion. Therefore  as the land was diluviated in the year of 1956 and alluviated in the year of 1982 the land remained under water for more than 26 years which is beyond 20 years period of time, as such, the record of right in S.A. and R .S. in the name of Government as khash Khatian No. 1 has been done as per the operation of law and the present plaintiff opposite parties lost their right  and title by the said provisions of law.

19.          I am now inclined to examine the judgment and decree passed by the learned courts below. The learned trial court came to a conclusion to dismiss the suit filed by the present plaintiff opposite parties on the basis of the following findings:

“h¡c£fr e¡¢m¢n S¢j cMm L­l j­jÑ h¡c£ f­rl pLm p¡r£Ne c¡¢h L­l ¢f, X¢hÔE-1 ®Sl¡u Sh¡­h h­me p¡­hL 1458 c¡­N 280 HLl 1003 c¡­N 31 naL J 968 c¡­N 38 naL S¢jz

A¡l¢S­a E­õ¢Ma ‘L’ J ‘M’ af¢pm fkÑ¡­m¡Qe¡u ®cM¡ k¡u ®k af¢p­m ¢p, Hp, 99 J 100 ew M¢au¡­el ®L¡b¡uJ 1458c¡N Hhw f¢lj¡e 2|80 HLl Hl X~­õM e¡C  p¤al¡w ‘M’ af¢pm h¢ZÑa 1458 c¡­Nl 2|80 HLl S¢j L af¢p­ml A¿¹NÑa j­jÑ c¡¢h fËj¡¢ea qu e¡C g­m h¡c£fr e¡¢m¢n S¢j cMm L­l j­jÑ p¡r£ N­el p¡rÉ  à¡l¡ h¡c£fr ­L¡e i¡­hC m¡ih¡e qJu¡l pñhe¡ e¡Cm h¡c£ f­rl c¡¢hL«a‘M’ af¢p­ml p¡L¥mÉ S¢j e¡¢m¢n ¢p, Hp 99  J 101 ew M¢au¡­el A¿¹NÑa e­q AbÑv 1458 c¡­Nl 2|80 HLl S¢jl f§hÑhaÑ£ j¡¢mL h¡c£N­el f§hÑhaÑ£ q¡¢eg E¢Ÿe J q¡l¦e E¢Ÿe M¾cL¡­ll ¢Rm h¡c£ fr a¡q¡ fËj¡e L¢l­a prj qe e¡Cz”

20.          On the other hand the learned appellate courts below allowed the appeal wrongfully thereby set aside the judgment and decree passed by learned trial court on the basis of the following unlawful findings:

“ e¡¢mn£ S¢jl Q¡l f¡­nÅl S¢j pj§q Bl, Hp,®lL­XÑ fËS¡­cl e¡­j ®lLXÑ qJu¡u Eš² e¡¢m¢n S¢j plL¡­ll e¡­j M¡p M¢au¡­e ®lLXÑ qJu¡u ®L¡e ¢i¢š M¤­S f¡Ju¡ k¡u e¡z  Q¡¢lf¡­n fËS¡­cl e¡¢ju ®lLXÑ ïj¡aÈL j­jÑ plL¡l ¢hh¡c£ a¡q¡­cl p¡­rÉ c¡¢h L­l e¡z  h¡c£fr Bl¢S­a e¡¢m¢n ¢p,Hp, 968 c¡­Nl S¢j Bl, Hp La ejÅl c¡­N ®lLXÑ q­u­R a¢ào­u ¢LR¤ E­õM L­l e¡Cz Hacü­aÄJ ¢X,X¡¢hÔE-1 ®Sl¡u S¡e¡u ®k Eš² S¢j Bl, Hp, 1668 c¡­N ®lLXÑ q­u­R 1668 c¡N pwœ²¡¿¹ Bl, Hp, eLp¡ h¡c£fr c¡¢Mm L­l­R Eš² eLp¡ cª­ø Hhw ¢X, X¢hÔE-1 Hl p¡rÉ fkÑ¡­m¡Qe¡ pÇf­LÑ fËa£uj¡e qu ®k, Eš² S¢j cMm J ec£­a i¡­‰ e¡Cz  kŸl©f Eš² i¨¢j Bl, Hp, S¢l­f 1 ew M¡p M¢au¡­e ®lLXÑ ¢m¢f ïj¡aÈL ¢p, Hp, 1003 c¡­Nl S¢j Bl Hp 1680-1684 ew c¡­N ®lLX Ñ q­u­R  Eš² eLp¡ cª­ÖY~J Eš² c¡­Nl S¢j ec£ ¢p¢L¢Øa S¢j j­jÑ fËa£uj¡e  qu e¡ Hja¡hØq¡u e¡¢mn£ ‘M’ af¢p­ml S¢j Bl ,Hp, S¢l­f  plL¡­ll e¡­j 1M¡p  M¢au¡­e ®lLXÑ ¢m¢f  ïj¡aÚÈL ¢hd¡u  h¡c£ Bf£mL¡l£ fË¡¢bÑa j­a fË¢aL¡l  ®f­a f¡­lz”

21.          In view of the above discussions and after perusal of the judgment and decree passed by the courts below I have carefully examined the findings of the courts below. I consider that the learned trial court committed no error of law by dismissing the suit on the ground that the plaintiff-opposite parties could not prove their case  with sufficient documents as to the title and possession which was  required under law from them, however the learned appellate court  below came to a wrongful conclusion to allow the appeal on the ground that the land was never diluviated despite the document produced by the parties, therefore, I consider that the learned appellate  court committed an error of law by allowing the appeal and by passing the impugned judgment and decree. I am therefore inclined to interfere into the judgment and decree passed by the appellate court below.       

22.          Accordingly, I find merit in the Rule.

23.          In the result, the Rule is made absolute.

24.         The Section is directed to communicate this judgment and decree to the concern Court below and also directed to send down the lower court records immediately.

Ed.



Civil Revision No. 3849 of 2010