Delipjan and others Vs. Shahed Badsha and others [4 LNJ AD (2015) 129]

Case No: CIVIL APPEAL No. 153 OF 2008

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. A. Q. M. Fazlul Huq Khan,Mr. Ziaur Rahman,,

Citation: 4 LNJ AD (2015) 129

Case Year: 2015

Appellant: Delipjan and others

Respondent: Shahed Badsha and others

Subject: Declaration of Title,

Delivery Date: 2014-02-11

APPELLATE DIVISION
(CIVIL)
 
Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,
Mohammad Anwarul Haque, J.
 
Judgment on
11.02.2014
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}
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Delipjan being dead his heirs: Fazal Haque @ Fazlul Haque and others
...Appellants
Versus
Shahed Badsha and others
...Respondents
 
 
Specific Relief Act (I of 1877)
Section 42
Having considered the evidence of P.Ws.2 and 3, it appears that the plaintiffs could not prove their exclusive possession in the suit land. When the witnesses of the plaintiffs could not prove possession of the plaintiffs in the suit land, they are not entitled to have a decree in respect of the suit land. Where the plaintiffs are out of possession and the defendants are in possession, the “further relief” would be recovery of possession and the suit for declaration of title without prayer for recovery of possession is hit by the proviso to section 42 of the Specific Relief Act.  . . . (17 and 18)

State Acquisition And Tenancy Act (XXVIII of 1951)
Section 144A
Admittedly, the S.A. Khatian in respect of the suit land was prepared in the name of Nizamuddin, the predecessor-in-interest of the defendants and that the suit land has been filed after 28 years of the preparation of the alleged Khatian. Mere preparation of Khatian is of no avail till the plaintiffs are affected by the preparation thereof and as such, it cannot be said that the suit is barred by limitation. . . . (17)
 
For the Appellants : Mr. A. Q. M. Fazlul Huq Khan, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For Respondent Nos. 1-8 : Mr. Ziaur Rahman, Advocate, instructed by Mr. Md. Nurul Islam Bhuiya, Advocate-on-Record.
Respondent Nos. 9-22 : Not represented.
 
CIVIL APPEAL No. 153 OF 2008
 
JUDGMENT
Syed Mahmud Hossain, J:

This appeal by leave by the defendants-appellants arises out of the judgment and order dated 20.08.2006 passed by the High Court Division in Civil Revision No.1104 of 1993 making the Rule absolute and reversing the judgment and decree dated 18.03.1993 passed by the learned Additional District Judge, Eighth Court, Dhaka in Title Appeal No.120 of 1991 reversing the judgment and decree dated 31.01.1991 passed by the learned Assistant Judge, Dhamrai, Dhaka in Title Suit No.65 of 1989 decreeing the suit.
 
The facts, leading to this appeal, in brief, are as follows:
The appellants herein as the plaintiffs instituted Title Suit No.65 of 1989 in the Court of Assistant Judge, Dhamrai, Dhaka for declaration of title in respect of “Kha” schedule land of the plaint. The case of the plaintiffs, in short, is that Sheikh Jaku, the predecessor of the plaintiffs, being in need of money gave the suit land in mortgage to Zamindar Sachindra Mohan Roy and others of Royel. Money borrowed was repaid. Yet Zamindar Sachindra Mohan Roy and other did not release possession of the suit land. The matter was complained to the Debts Settlement Board. The Board directed Sachindra Mohan and others to return the land by an award. The Zamindar preferred an appeal to the High Court Division and the award was cancelled. After that, the mortgagor filed revision case before the learned District Judge, which was dismissed. But the learned District Judge made certain comments in favour of title of the mortgage of Sheikh Jaku. On the basis of those comments, the heirs of Sheikh Jaku had filed a Partition Suit No.76 of 1951 in the First of the then Subordinate Judge, Dhaka. Defendant Nos.13-16 and 18 contested the suit, which was decreed for declaration of title as well as for partition. On the basis of that decree, the plaintiffs and defendants Nos.19 and 20 had effected an amicable partition amongst themselves. A solenama was prepared incorporating the said amicable partition. The solenama was filed and a final decree was passed on the basis of that solenama. The plaintiffs are now owners and possessors of the suit land on the basis of that decree. Nazimuddin, the predecessor of the defendants, who was impleaded as defendant No.14 in that partition suit contested the suit. But Nazimuddin by suppressing the fact of the decree, at the time of S. A. operation, in collusion with surveyors got ‘Ka’ scheduled land recorded along with other lands in his name though he had no right, title or possession over the suit land and such erroneous record created clouds over the title of the plaintiffs. The plaintiffs are still in possession of the suit land. The plaintiffs got their names mutated in respect of the suit land along with some other lands and have been paying taxes regularly. After that, the defendants started disturbing over the peaceful possession of the plaintiffs by adopting various techniques and they also threatened the plaintiffs to dispossess them from the suit land forcibly. Hence, the plaintiffs were constrained to file the suit against the defendants seeking declaration of title over the suit land.
 
Defendant Nos.1-7 contested the suit by filing a joint written statement denying all the material statements made in the plaint. The case of these defendants, in short, is that the suit is not maintainable without the prayer for recovery of khas possession. Their further case is that one Bendu Bepari was the owner of the land of khatian No.379 who died leaving behind four sons, namely, Kunduly, Barkat, Jaku and Asman and C. S. khatian record was correctly recorded in their names. After that, Kunduly died leaving behind two sons, namely, Kazimuddin and Nazimuddin and Asman died leaving behind one daughter Habiba, who sold 09½ decimals of land in plot No.502 on 13.01.1951 to the defendant and delivered possession thereof. Barkat died leaving wife Sabjan and three sons, namely, Sonaruddin, Yazuddin and Megu and three daughters. Sabjan sold 12 decimals of land in plot NO.492 on 25.08.1956 to the father of the defendant. Nazimuddin owned and possessed 18 decimals of land in plot No.502 by purchase and inheritance from his father. Badsha, son of Azimuddin possessed 24 decimals of land in plot NO.487 by inheritance from his father and Sheikh Jaku mortgaged 74 decimals of land of plot No.487 and 6 decimals in plot No.497 for want of money to Zaminder Sachindra Mohan Roy but failed to repay the borrowed money, as a result, the said mortgaged land was sold in auction and the Zaminder purchased the same in auction. After that, Zaminder Sachindra gave pattan of the suit land to Nazimuddin, the predecessor of the defendants on 23rd Aswin of 1352 B.S. The S. A. khatian was recorded in the name Nazimuddin correctly. After the death of Nazimuddin, defendant Nos.1-7 inherited the suit land. Therefore, the plaintiffs are not entitled to get any relief according to law. And as such, the suit is liable to be dismissed.
 
The trial Court upon hearing the parties by its judgment and order dated 31.01.1991 decreed the suit.
 
Against the judgment and decree passed by the trial Court, defendant Nos.1-7 preferred Title Appeal No.120 of 1991 before the learned District Judge, Dhaka. On transfer, the appeal was heard and disposed of by the learned Additional District Judge, Eighth Court, Dhaka, who by his judgment and order dated 18.03.1993 allowed the appeal setting aside the judgment and decree passed by the trial Court.  
 
Being aggrieved by and dissatisfied with the judgment and decree of the appellate Court, the plaintiffs filed a revisional application before the High Court Division and obtained Rule in Civil Revision No.1104 of 1993. The High Court Division by its judgment and order dated 20.08.2006 made the Rule absolute.
 
Feeling aggrieved by and dissatisfied with judgment and order dated 20.08.2006 passed by the High Court Division, the defendant-leave-petitioners moved this Division by filing Civil Petition for Leave to Appeal No.939 of 2007 in which leave was granted on 14,05.2008 resulting in Civil Appeal No.153 of 2008.
 
Mr. A. Q. M. Fazlul Huq Khan, learned Advocate appearing on behalf of the defendant-appellants, submits that the High Court Division erred in law in failing to consider the exhibits filed on behalf of defendants-appellants in respect of the suit land by which, the defendants-appellants claimed title over the suit land and as such, the impugned judgment should be set aside. He further submits that the suit filed by the plaintiffs-respondents is hit by the proviso to section 42 of the Specific Relief Act as the plaintiff-respondent Nos.1-8 are admittedly out of possession of the suit land as is evident from the deposition of P.Ws.2 and 3 and that the High Court Division committed in error in not taking into consideration the point and that the suit being instituted long 28 years from the date of recording S.A. khatian in the name of Nazimuddin, the predecessor-in-interest of the defendants-appellants, is hopelessly barred by limitation.
 
Mr. Ziaur Rahman, learned Advocate, appearing on behalf of respondent Nos.1-8, on the other hand, submits that the High Court Division came to a finding that Nazimuddin, the predecessor-in-interest of defendant-respondent Nos.1-8, was defendant No.14 in Partition Suit No. 36 of 1956, which was decreed on compro-mise and that the plaintiffs obtained possession in the suit land through Court as per the saham prepared by the Advocate Commissioner and had been possessing the suit land peacefully and as such, the heirs of Nazimuddin cannot dispute the title of the plaintiffs-respondents and as such, the impugned judgment does not call for any interference. He further submits that lower appellate Court erroneously came to a finding that P.Ws.2 and 3 admitted that defendant Nos.1-8 had been in possession of the suit land and that if the evidence of P.Ws.2 and 3 is considered as a whole, it will transpire that they, in fact, supported the possession of the plaintiffs in the suit land.
 
Before addressing the contentious submi-ssions made by the learned Advocates of both the sides, let us go through the grounds, on which, leave was granted, which are as under:
 
“The High Court Division erred in law in failing to consider exhibits-1-1(kha), Ka, Gha, Ja, Uma, Cha and Chha in respect of the title of the respondent over the suit land and also failed to consider that the suit is hit by the proviso to section 42 of the Specific Relief Act as the plaintiff-respondent Nos.1-8 were admittedly out of possession of the suit land as is evident from the deposition of P.W.2 in his examination-in-chief as well as in his cross examination and further the High Court Division also fell in error in not taking into consideration the point that the suit being instituted after long 28 years from the time of recording of S.A. khatian in the name of Nazimuddin, their predecessor is hopelessly barred by limitation.”
 
Admittedly, the plaintiffs’ predecessor filed Partition Suit No.36 of 1956 against the predecessor of defendant-appellant Nos.1-7 and all other co-sharers in respect of the suit land and other lands and the suit was decreed in terms of a solenama. The plaintiffs-respondents contended that the suit land fell in the saham of the predecessor-in-interest of the plaintiffs-respondents according to the saham prepared by the Advocate Commissioner. It is not disputed that Nizamuddin, the predecessor-in-interest of the defendants-appellants was defendant No.14 in that partition suit. If we start from filing of Partition Suit No.36 of 1956 there is no necessity of considering the conflicting claim of title of the respective parties over the suit land. The lower appellate Court, however, found that the plaintiffs could not prove their title and possession in the suit land and that the suit is hopelessly barred by limitation.
 
In a suit for declaration of title, the plaintiffs are not only required to prove their title in the suit land but also their possession therein. 
 
P.W.2, Md. Momtaz Uddin Sheikh in examination-in-chief stated that বিবাদীরা এক কোটা জমিতে দখলে আছেz সবটাতে যায় না এ মোকদ্দমা করার আগেই বিবাদীরা নালিশী এক কোটাতে দখলে আছে. সেই কোটা জমির পরিমাণ  .৩০/.৪০ ডিং হবেz বর্তমান বিবাদীরা নাজিম উদ্দিনের ওয়ারিশ এই নাজিম উদ্দিন অাগের সেই মোকদ্দমায় পক্ষ ছিল In cross examination this witness further stated that নালিশী জমিতে .০৬ ডিং বাড়ি কোন দিকে আছে বলতে পারব না বাড়িতে কিছু অংশে বিবাদী বসবাস করে
 
P.W.3, Md. A. Alim stated in his cross-examination that বর্তমানে এই .৭৪ ডিং নিয়া পক্ষগণ (মধ্যে) গনডুগুল আছে  আর কি পরিমান নিয়া মামলা বলতে পারবনাz এই মামলার পর এই .৭৪ ডিং এর মধ্যে বিবাদীরা দখলে যায়z আবার বাদীরা দখল নেয় এই ভজঘট  চলছে বর্তমানে এই জমি পতিতz মাসখানেক আগে এই জমিতে বিবাদীরা ধান বুনে ছিল ধান কাটিয়া অর্ধেক বিবাদীরা নিয় গিয়াছেz বাকী অর্ধেক গ্রামের তৃতীয় ব্যাও্রির কাছে আছে
 
Having considered the evidence of P.Ws.2 and 3, it appears that the plaintiffs could not prove their exclusive possession in the suit land. When the witnesses of the plaintiffs could not prove possession of the plaintiffs in the suit land, they are not entitled to have a decree in respect of the suit land.
 
The High Court Division, however, found that the plaintiffs have been in possession of the suit land pursuant to the decree passed in Partition Suit No.36 of 1956 without at all considering of evidence of the plaintiffs’ witnesses, in particular, P.Ws. 2 and 3.     
 
Admittedly, the S.A. khatian in respect of the suit land was prepared in the name of Nizamuddin, the predecessor-in-interest of the defendants and that the suit land has been filed after 28 years of the preparation of the alleged khatian. Mere preparation of khatian is of no avail till the plaintiffs are affected by the preparation thereof and as such, it cannot be said that the suit is barred by limitation. We have already found that the plaintiffs could not prove their exclusive possession in the suit land. Where the plaintiffs are out of possession and the defendants are in possession, the “further relief” would be recovery of possession and the suit for declaration of title without prayer for recovery of possession is hit by the proviso to section 42 of the Specific Relief Act.
 
We notice with approval similar view taken in the cases of Abdul Hamid Mollah Vs. Abdul Hye and others, (1997) 49 DLR 428, Abdur Rahman Mia (Md) Vs. Md. Saber Ali Mia (1999) 4 BLC 429; Shahani Bibi being dead her heirs: Mohammad Azim and others Vs. Nurul Islam being dead his heirs: Doly Islam and others (1999) 4 BLC 195; and Haji Yar Ali Khan Chowdhury Vs. Mobarak Ali Chowdhury and other,(1955) 7 DLR 6.  
 
In the light of the findings, we find that the impugned judgment delivered by the High Court Division cannot sustain in law.
 
Accordingly, the appeal is allowed and the impugned judgment delivered by the High Court Division is set aside without any order as to costs.
 
Ed.