Dabendra Kumar Guha Vs. Most. Nur Begum 2017 (2) LNJ 86

Case No: First Appeal No. 54 of 2011

Judge: Soumendra Sarker. J.

Court: High Court Division,

Advocate: Mr. Md. Aminul Islam, Mr. Ashim Kumar Mallik,

Citation: 2017 (2) LNJ 86

Case Year: 2016

Appellant: Dabendra Kumar Guha

Respondent: Most. Nur Begum

Subject: Civil Law

Delivery Date: 2017-09-18

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Soumendra Sarker, J

And

Md. Ashraful Kamal, J

Judgment on

08.08.2016

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Dabendra Kumar Guha

.. Defendant-Appellants

-Versus-

Most. Nur Begum

... Plaintiff-Respondents

Limitation Act (IX of 1908)

Article 120

The learned court below in his findings and decisions rightly held relying upon the decision of this court that mere wrong record does not cast any cloud on the title of anybody until and unless the title is denied. With regard to this; the witness No.1 of the plaintiff testified specifically that on 23.05.2004 he went to the local ‘tahsil’ office to mutate the name of the plaintiff for payment of rent but the concerned Tahshilder stating about the R.S. record of right denied to mutate the name of the plaintiff and thereby the plaintiff felt aggrieved. Hence; obviously this is the cause of action of the original suit and from this date; within the statutory period of limitation the original suit was instituted.                                          . . . (14)

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 144

The exhibited documents including the oral evidence have been evaluated properly in it’s true perspective. Besides this; in respect of right, title, interest and possession it has been categorically held after proper sifting of evidence that the plaintiff to the suit have got her right, title, interest and possession in the suit property and the only hurdle in respect of land is the R.S. record of right which stands recorded in the name of the defendant. In fact; the R.S. record of right has got no presumptive value of it’s correctness and especially when it is rebutted by tangible evidence as the instant case be; there is nothing to hold such a view that the R.S. record has been correctly prepared.                                           . . .(17)

Evidence Act (I of 1872)

Sections 101 and 102

The plaintiff to the suit in order to succeed have discharged her onus of proof under the purview of section 101 and 102 of the Evidence Act. Accordingly; the learned trial court was quite justified in holding such view that the issues are decided in favour of the plaintiff and there is no legal embargo in obtaining the decree as prayed for by the plaintiff.                                            . . . (18)

Government of Bangladesh Vs. AKM Abdul Hye and others, 56 DLR (AD) 53 ref.

Mr. Md. Aminul Islam, Advocate

---- For the Appellant

Mr. Ashim Kumar Mallik, Advocate

----For the Respondent.

JUDGMENT

Soumendra Sarker, JThis appeal is directed at the instance of the defendant-appellant against the judgment and decree dated 24.11.2010 and 30.11.2010 respectively passed by the learned Joint District Judge, 1st Court, Dhaka, in Title Suit No.245 of 2004 decreeing the suit on contest.

2.            The facts relevant for disposal of the appeal in a nut shell can be stated thus the present respondent No.1 as plaintiff instituted the original Title Suit being No.245 of 2004 in the 1st Court of learned Joint District Judge, Dhaka against the defendant-appellant and others for declaration of title with a further declaration that the R.S. khatian in the name of the defendant-appellant is illegal and not binding upon the plaintiff. In the original plaint the plaintiff’s case in short is as follows that the disputed property appertaining to C.S. Khatian No.6231 originally belonged to one Felu Sheikh. At the demise of Felu Sheikh one Fakir Chand and others inherited the property left behind the C.S. recorded tenant Felu Sk. Subsequently, the entire land of the suit plot has been transferred in favour of the father of defendant No.1 Jogendra Kumar Guha by a registered sub-kabala deed dated 04.08.1943 A.D. In the disputed plot the entire area was 1776 “ajutangsha” and out of that portion of land 833 “ajutangsha” was acquired by the government in L. A. Case No.36/1950-51. The remaining 943 “ajutangsha” is situated beside a road. To the north-east side of the road the land measuring 412 “ajutangsha” and to the north-west side of the road there is 531 “ajutangsha” of the property lies and those lands has been recorded in the name of Jogendra Kumar Guha during S.A. operation. From S.A. khatian No.1214 the land measuring 560 “ajutangsha” was declared to dispose of by the S.A. recorded tenant Jogendra Kumar Guha. There has been a bainapatra in respect of 943 “ajutangsha” of land on 01.01.1958. Jogendra Kumar put his signature behind the baina-patra and in respect of the suit land there was an additional bainapatra dated 15.05.1960 but Jogendra Nath Guha subsequently denied to hand over possession in favour of the purchaser Abdul Mannaf. Thereafter an Other Class Suit No.82 of 1963 was filed by Abdul Mnnaf in the 1st Court of learned Joint District Judge, Dhaka for Specific Performance of Contract. In that suit after service of summons-notice Jogendra Kumar did not contest and accordingly the suit was decreed ex-parte on 06.02.1967. That decree was modified subsequently on 19.09.1967 A.D. The decree-holder Abdul Mannaf obtained the kabala deed registered through court on 28.06.1967. The further case of the plaintiff was such that there was a sweeper-passage in the disputed property and while that passage was closed arbitrarily; there was a Civil Suit being No.51 of 1967 in the 6th Court of the then Munsif, Dhaka and that suit was ended pursuant to a solenama. In the said suit it was decided by a decree that 44 “ajutangsha” property would be used jointly for the aforesaid purpose. In the year 1969 the kabala purchaser Abdul Mannaf transferred the suit land in favour of his brother Abdul Majid by a kabala deed dated 02.07.1969. Thereafter, Abdul Majid mutated his name in the city corporation and paid rent. Abdul Majid after payment of electricity, water and gas connection bill regularly use to possess that land through his tenant. During the continuation of such constrictive possession peacefully while the concerned ‘tahsil’ office denied to take rent from the plaintiff he felt aggrieved of that and his title is clouded which constrained the plaintiff to institute the original suit for declaration of title and a further declaration that the R.S. record is wrong and not binding upon the plaintiff.

3.            The contrary case of the defendant-appellant in short is thus that Jogendra Kumar Guha by a registered deed No.4478 purchased the suit land measuring .1776 “ajutangsha” from the heirs of Felu Sk. Out of that land in L.A. Case No.36/1950-51, 0.833 “ajutangsha” land has been acquired by the government and Jogendra Kumar obtained compensation amount of Tk.2619/- (Taka two thousand six hundred and nineteen). There is a mention within the remaining portion of land that to the right sight of that; there exist a road. Defendant’s further case is such that Jogendra Kumar entered into a contract with Md. Abdul Mannaf in respect of the land and after getting baina money executed a bainanama deed. There was an agreement between the parties that the remaining consideration money will be paid within one year of the bainanama but the plaintiff’s side in spite of several requests did not execute and register a sale deed. The defendants thereafter on 16.12.1960 sent a registered notice but getting that registered notice the recipient of the bainanama did not pay any heed of it and accordingly the baina patra became cancelled. Thereafter; a Title Suit being No.82 of 1963 was instituted but there was no service of summons-notice upon the defendant and the defendant expired on 13.03.1965. Subsequently; an ex-parte decree was obtained collusively without service of summons notice. Subsequently, the present defendant came to learn that the disputed property has been sold out by Abdul Mannaf in favour of his brother Abdul Majid. The R.S. record of right in the name of defendant-appellant is correct but the plaintiff on false allegations suppressing the facts instituted the original suit.

4.            The learned trial judge during trial of the original suit after examining four witnesses from the side of the plaintiff and one witness from the side of the defendant on perusal of the exhibited papers from the sides of the respective parties decreed the suit on contest by the impugned judgment and decree dated 24.11.2010.

5.            Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-appellant have preferred this appeal to set aside the impugned judgment and decree.

6.            During hearing of this Appeal Mr. Md. Aminul Islam, the learned Advocate appeared on behalf of the appellant while Mr. Ashim Kumar Mollik the learned Advocate appeared on behalf of the respondent.

7.            The learned Advocate appearing on behalf of the appellant submits that the learned trial court during passing the impugned judgment and decree committed illegality and infirmity. It was further submitted from the side of the learned counsel of the appellant that the impugned judgment and decree is based on surmise and conjecture. The learned Joint District Judge, misdirected himself on the point of facts and laws and in fact the original suit was hopelessly barred by the law of limitation as it was not filed within the statutory period of limitation from the date of knowledge that the R.S. record of right stands recorded in the name of defendant. The learned Advocate further submits that the bainanama which was registered on 01.01.1958 was not acted upon as the conditional clause of the bainapatra was not complied with within time which was automatically stood cancelled. But the learned trial court without grapsing the actual facts as well as the evidence on records decreed the suit on contest arbitrarily. The learned Advocate also submits that the evidence adduced from the sides of the respective parties were not properly evaluated during deciding the issues of the original suit and the assessment of evidence is not proper in deciding the merit of the case. The learned Advocate lastly submits that the learned Joint District Judge, 1st Court during disposal of the original suit failed to apply his judicial mind and as such the impugned judgment and decree is liable to be set aside.

8.            As against the aforesaid submissions the learned Advocate appearing on behalf of the plaintiff-respondent opposing the appeal memo controverted the arguments advanced from the side of the defendant-appellant and opposing the appeal submits that the learned trial court was quite justified and legal in deciding the merit of the suit and there is no infirmity or illegality in deciding the fate of the issues framed during disposal of the original suit on merit. The learned Advocate further submits that the plaintiff to the suit while felt aggrieved due to the wrong R.S. record of right the cause of action accrued in other words when the title of the plaintiff was denied by dint of R.S. record of right the cause of action of the original suit arises and from that date, the original suit was instituted well within the period of limitation prescribed in the Limitation Act and the learned trial court rightly held that the suit is not barred by the law of Limitation. The learned Advocate also submits that the evidence adduced from the sides of the respective parties were properly assessed in its true perspective and the learned Joint District Judge conclusively held after proper sifting of evidence and appreciation of law that the plaintiff to the suit have every right, title, interest and possession in the disputed property and he has successfully discharged his onus in proving his case by adducing sufficient oral and documentary evidence. The witnesses adduced from the side of the plaintiff successfully proved the respective case of the plaintiff and they have corroborative one-another in respect of the right, title, interest and possession in the disputed property. The learned Advocate lastly submits that the R.S. record of right which has been prepared in the name of the defendant is wrong, collusive and never acted upon which has been reflected through the evidence adduced from the side of the defendant and thus the learned trial court committed no wrong or illegality whatsoever in decreeing the suit on contest.

9.            We have considered the submissions of the learned Advocates and have gone through the respective cases of the parties including the documentary evidence and oral evidence adduced from the sides of the respective parties and the impugned judgment and decree passed by the learned Joint District Judge, 1st Court, Dhaka.

10.        On perusal of the case records it transpires that during pendency of the original suit both the parties to the suit have adduced evidence in support of their respective cases and it is an admitted position that the suit property described in the schedule of the plaint had been owning and possessing by the C.S. recorded tenant Felu Sheikh. The respective C.S. khatian no.6231 has been produced which has been marked as Exhibit-2, and there is a presumptive value of it’s correctness.

11.        It has been contended from the side of the plaintiff that the entire land of the suit plot is 1776 “ajutangsha” and out of hat land 833 decimals was acquired by the government in L.A. Case No.36/1950-51.

12.        The plaintiff’s witness P.W.1 Maleh Mohammad who is the “power of attorney” of the plaintiff and as power of attorney by virtue of a deed dated 29.10.2009 (Exhibit-1) P.W.1 deposed on behalf of the plaintiff. With regard to the area of the suit land there is a clear recital from the side of the P.W.1 that 552 decimals of land is being possessed by the plaintiff. For the suit land the S.A. khatian is 1214 and its plot No. is 4003. The subsequent R.S. khatian which has been challenged from the side of the plaintiff is 3111. Swearing a supplementary affidavit the plaintiff to the suit submitted some papers relating to an order passed y the Chairman, Land Appeal Board, Dhaka in connection with Mutation Case No.105/2004 vide Annexure-‘A’.

13.        Having gone through the papers it appears that during pendency of the original suit an appeal case being No.3-105/04 in respect of mutation of the suit land was instituted by the present appellant against the order dated 02.11.2004 passed by the Additional Commissioner (Rev.), Dhaka in Miscellaneous Appeal No.85 of 2001. The case which was pending during pendency of the suit in the Court of Chairman, Land Appeal Board, Dhaka has been disposed of in favour of the present appellant vide judgment and order dated 11.12.2013. In the said order Chairman of Land Appeal Board held that the plaintiff-respondent No.1 Mst. Noor Begum use to possess the suit land for more than 60 years and it was further held that in respect of the suit land the present plaintiff-respondent have got her right, title and interest. The mutation in respect of R.S. khatian No.3111 has been corrected pursuant to the order of the Chairman dated 11.12.2013.

14.        Besides this; we have come across from the plaint of the original suit No.245 of 2004 that the plaintiff-respondent in the said suit in paragraph No.16 specifically contended that on 17.05.2004 while the plaintiff went to pay rent to the concerned ‘tahshil’ office, the Tahshilder stating about the R.S. record of right denied to accept rent from the plaintiff and thereby the plaintiff became aggrieved and thus her title to the suit land was threatened which constituted the cause of action of the original suit. With regard to this; the learned court below in his findings and decisions rightly held relying upon the decision of this court that mere wrong record does not cast any cloud on the title of anybody until and unless the title is denied. With regard to this; the witness No.1 of the plaintiff testified specifically that on 23.05.2004 he went to the local ‘tahsil’ office to mutate the name of the plaintiff for payment of rent but the concerned Tahshilder stating about the R.S. record of right denied to mutate the name of the plaintiff and thereby the plaintiff felt aggrieved. Hence; obviously this is the cause of action of the original suit and from this date; within the statutory period of limitation the original suit was instituted.

15.        In this context; in the case of Government of Bangladesh –vs.- AKM Abdul Hye and others 56 DLR(AD)53, their lordships held in paragraph-7 that,

   “The law is now settled that against the wrong record of rights the person whose interest is affected by such wrong recording need not file suit questioning legality of the record of rights so prepared and finally published within 6 years from said date or from the date of knowledge of such wrong record of rights, but he is required to file the suit seeking declaration of title within six years from the date the person in whose name record has been wrongly prepared and finally published raises claim denying his claim on the basis of wrong record. But if the entry in the record of rights is made the cause of action one has to file the suit within 6(six) years from the date of final publication of the record of rights and not from the date of the certificate of the final publication.”

16.        Apart from this; consulting the relevant evidence on records we find that to corroborate the case of the plaintiff excepting the power of attorney P.W.1 Maleh Mohammad, the witness No.2 Md. Naharul Hoque Mollik specifically testifies that he is a tenant under the plaintiff for the last 10/12 years and he has got the rent receipts in respect of his rented house. With regard to the possession of the plaintiff P.W.2 has been corroborated by P.W.3 Shibu Chandra Sarker and P.W.4 Sheikh Abdur Rob and all these witnesses have been thorough cross examined from the side of the defendant, but none of them appears to have been discredited except some minor discrepancies. They have corroborated one-another in respect of the respective case of the plaintiff which has been properly evaluated by the learned court below.

17.        Vis-à-vis; the solitary witness of the defendant, D.W.1 Jagannath Dey in his testimony tried to establish the case of the defendant but from the trend of his cross-examination it is evident from the face of the records that he has failed to establish the case of the defendant rather it has been established from his testimony that the defendant have got no possession and interest in the disputed property. The learned trial Judge during passing the impugned judgment and decree vividly discussed the evidence on records and arrived at a conclusive decision as to the issues framed which were four in numbers. The exhibited documents including the oral evidence have been evaluated properly in it’s true perspective. Besides this; in respect of right, title, interest and possession it has been categorically held after proper sifting of evidence that the plaintiff to the suit have got her right, title, interest and possession in the suit property and the only hurdle in respect of land is the R.S. record of right which stands recorded in the name of the defendant. In fact; the R.S. record of right has got no presumptive value of it’s correctness and especially when it is rebutted by tangible evidence as the instant case be; there is nothing to hold such a view that the R.S. record has been correctly prepared.

18.        Be that as it may; we have every reason to inclined such a view that the plaintiff to the suit in order to succeed have discharged her onus of proof under the purview of section 101 and 102 of the Evidence Act. Accordingly; the learned trial court was quite justified in holding such view that the issues are decided in favour of the plaintiff and there is no legal embargo in obtaining the decree as prayed for by the plaintiff.

19.        Having regard to the facts, circumstances and discussions referred to above; we are constrained to hold such a view that the appeal have got no merit to succeed.

20.        In the result, the appeal is dismissed without any order as to costs. The impugned judgment and decree dated 24.11.2010 and 30.11.2010 respectively passed by the learned Joint District Judge, 1st Court, Dhaka, in Title Suit No.245 of 2004 in decreeing the suit is hereby upheld and confirmed

         Communicate the judgment and order at once and send back the Lower Court’s Record immediately.

Ed.

 

 

 



First Appeal No. 54 of 2011