Case No: F.M.A. No. 157 of 2015 with C. Rule No. 656(M) of 2011
Judge: Soumendra Sarker, J
Court: High Court Division,
Advocate: Mr. Md. Abdul Hai, D.A.G. with Mr. Md. Shahidul Islam Khan, A.A.G. ,
Citation: 2018(2) LNJ
Case Year: 2018
Appellant: Dr. A. K. M. Muztaba and others
Respondent: Ahsan Habib Khan and others
Subject: Evidence Act
Delivery Date: 2019-12-02
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
Soumendra Sarker, J
Dr. A. K. M. Muztaba and others
. . .Petitioner-Appellant
Ahsan Habib Khan and others
...Opposite party- Respondents
Evidence Act (I of 1872)
Sections 3 and 145
P.W.1, who is a co-petitioner of the case, A.B.M. Sadique, son of Saleh Ahmed and P.W.2 A.K.M. Nuruzzaman are interested witnesses, inasmuch as; they are not independent, competent and credible because of their relationship with one another. No independent, disinterested, competent witness is examined from the side of the petitioners, who can be relied upon to believe the case of the petitioner-appellants. On the other hand, O.P.W.1, who is the opposite party No.2 during his testimony, corroborated their case and O.P.W.2 Alhaj Abdur Rashid Khan corroborated O.P.W.1 in his deposition. From their cross-examination except some minor discrepancy no such material contradiction, omission or ambiguity is noticed, by which they can be disbelieved. . . .(26)
Waqfs Ordinance (I of 1962)
Sections 56 and 80
The fact remains in view of the schedule Condition No.3 of the deed of waqf and section 56 & 80 of the Waqf Ordinance, 1962 that the case land being a waqf property cannot be transferred or alienated by any means and the alleged act of compromise in the Title Suit No.02 of 1972 cannot be treated legal and proper. It is found that the motuwallies are also without jurisdiction without prior approval of the waqf Administrator to enter into any compromise in respect of the case property. The connected S.A. Khatian vide Exhibit-‘D’ which stands recorded in the names of the predecessor-in-interest of the respondents have got a presumptive value of correctness as it is not rebutted by any tangible evidence and that there is nothing on record to hold that the khatian was prepared wrongly. From the record of Waqf Administrator with regard to the nature and character of the case land it transpires that an enquiry was held and there is a report to that effect dated 17.12.1996 and from the contents of that report it is crystal clear that the enquiry officer during his local enquiry clearly observed that the suit property is a waqf property and there is no existence of any valid document showing transfer of the case property in favour of 3rd party. Furthermore, under section 56(1) of the Waqf Ordinance, 1962 there is no such approval or permission by which the alleged transfer or alienation was done. . . .(29)
Waqfs Ordinance (I of 1962)
In the instant case, as I have already spelt out that, there is nothing on record to differ with the findings and decisions given by the learned District Judge, Bagerhat as to the fate of the miscellaneous case. The act of the Administrator in the instant case cannot be treated ultravires or not legal because of the documentary evidences, especially the conduct of the waqif Karam Ali Khan with regard to the permanent dedication of the suit property along with his other properties done by him pursuant to a registered deed of waqf declaring the property as waqf property. As to the possession of the present appellants I have already pointed out that they and prior to them their predecessor-in-interest was a permissive possessor under the motuwallies. Hence, there is no wrong or illegality or irregularity in passing the order of the Waqf Administrator under section 50 of the Waqf Ordinance, 1962 pursuant to E.C. No.11050. . . . (30)
19 DLR 106; 2 BLC 517 and 2 SCC 642 ref.
Mr. Md. Abdul Hai, D.A.G. with
Mr. Md. Shahidul Islam Khan, A.A.G.
. . . For the petitioner.
Mr. Md. Sharafutullah , Advocate
. . .For the opposite parties.
Soumendra Sarker, J. The Rules issued calling upon the Opposite party No. 1 & 2 to show cause as to why the impugned judgment and decree dated 12.11.2008 and 18.11.2008 respectively passed by the learned Joint District Judge, 2nd Court, Meherpur in Title Appeal No. 68 of 1999 affirming those of dated 24.02.1999 and 28.02.1999 respectively passed by the learned Senior Assistant Judge, Meherpur Sadar, Meherpur in Title Suit No. 326 of 1995 decreeing 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.
2. The facts leading to the issuance of Rule in a nutshell can be stated thus, the present opposite party No. 1 & 2 as plaintiffs instituted the Original Title Suit No. 326 of 1995 in the court of learned Senior Assistant Judge, Meherpur Sadar, Meherpur for declaration of their title in the suit property and for a further declaration that the enlistment of the suit property as vested property is illegal, void and not binding upon the plaintiffs contending inter alia that the suit property originally belonged to one Gopi Dasi and the S.A. khatian No. 343 was correctly recorded in her name under mouja Chandpur of District Meherpur, comprising an area of 16 decimals of land. The owner of the property, Gopi Dasi by a registered kabala deed dated 04.02.1960 transferred the land in favour of one Mayzuddin and the purchaser Mayzuddin after mutation of his name started to pay rents to the Government. Subsequently, Mayzuddin transferred 06 decimals of land in favour of one Shawkat Ali and 05 decimals in favour of one Ruhul Amin. Out of the remaining 05 decimals of land Moyzuddin transferred 2 ½ decimal in favour of the plaintiff No. 01 by a transfer deed dated 03.12.1973 A.D. and the rest 2 ½ decimals of land was transferred in favour of the father of the Defendant No. 02 by Moyzuddin. The further case of the plaintiffs is such that the plaintiff No. 01 and the father of the plaintiff No. 02 also purchased 07 decimals of land from plot No. 1618 which is adjacent to the suit plot. The plaintiffs are possessing their purchased land jointly and mutated their names in the Government seresta and paying rents to the Government. They have erected their dwelling huts in the suit property and residing therein. In the suit property the plaintiffs have pacca building and in the preliminary stage of R.S. record, 12 decimals of land was recorded in the names of the plaintiff No. 01 and the father of the plaintiff No. 02. The father of plaintiff No. 02 died leaving behind five daughters, one wife and one son, the plaintiffs No. 02. The plaintiff No. 02 by a registered sub-kabala deed dated 16.04.1989 A.D. purchased the lands of other co-sharers measuring 06 decimals of land in the suit holding. On 28.02.1995 the plaintiffs going to the local Tahshil Office came to learn that the suit properly measuring 05 decimals of land has not been recorded finally in their names in the R.S. record and out of the suit property 1/2 decimals of land has been wrongly recorded in the name of defendant No. 02 in Plot No. 6036. The defendant No. 02 entered into a solenama with the plaintiffs for that portion of land. On the above mentioned date the concerned Tahshilder denied to accept rent from the plaintiffs, and thereafter the plaintiffs instituted the original suit.
3. The contrary case of the defendant No. 01, Government of Bangladesh is short is thus, that the suit property originally belonged to Gopi Dasi, who migrated to India prior to 1960 A.D. and started to reside therein since then and accordingly, under the operation of law, the property has become enemy property and subsequently as vested and non-resident property and that the R.S. record has been correctly prepared in the name of Government. The further case of the Government is such that the plaintiffs having no right, title, interest and possession in the suit property, on false allegations filed the suit which is liable to be dismissed.
4. The learned trial court during trial of the original suit after taking evidence from the sides of the respective parties decreed the suit on contest by the judgment and decree dated 24.02.1999.
5. Being aggrieved the defendant, Government has preferred a Title Appeal being No. 68 of 1999 in the court of the learned District Judge, Meherpur which was transmitted to the 2nd court of the learned Joint District Judge, Meherpur for hearing and disposal and the learned appellate court hearing the appeal disallowed the same affirming the judgment and decree passed by the trial court by the impugned judgment and decree dated 12.11.2008.
6. Being aggrieved by and dissatisfied with the impugned judgment and decree, the defendant-appellant as petitioner has preferred this revisional application under Section 115 (1) of the Code of Civil Procedure and obtained the Rule.
7. During hearing of the Rule Mr. Md. Abdul Hai, the learned Deputy Attorney General along with Mr. Md. Shahidul Islam Khan the learned Assistant Attorney General appeared on behalf of the petitioner, while Mr. Sharafutullah, the learned Advocate appeared on behalf of the opposite parties.
8. The learned Deputy Attorney General appearing on behalf of the petitioner submits that the learned trial court as well as the appellate court during disposal of the original suit and its subsequent appeal committed illegality and irregularity. The learned Deputy Attorney General (here in after D.A. G.) submits that the original suit was not maintainable in its present form as it was barred under Section 42 of the Specific Relief Act and the law of limitation. The learned D.A. G. also submits that the C.S. & S.A. recorded tenants of the suit property have migrated to India in 1965, without disposing the suit property in favour of any body in any manner and did not come back to this country and as such the suit property has been declared vested and non-resident property under Defence Of Pakistan Rules, 1965 and the suit property has been enlisted in the census list of enemy property and the Government is possessing the suit property through their lessees. The learned D.A.G. also submits that the plaintiffs have created some false and antidated documents, only to grab the Government’s property and both the parties during trial have adduced evidences in support of their respective cases but the courts below without proper assessment of evidence and appreciation of law decided the merit of the suit in favour of the plaintiffs, resulting in an error in the decision occasioning failure of justice. The learned D.A. G. lastly submits that the suit land has been assumed the character of the enemy property (vested property) in the period between 06.09.1965 and 16.02.1969 A.D. and thereby comes within the definition of enemy property (now vested property) under Rule 169 (4) of the Defence Of Pakistan Rules, 1965 but the learned appellate court without considering that, decided the merit of the appeal against the appellant illegally and as such the impugned judgment and decree is not sustainable in law and facts.
9. As against the aforesaid submission of the learned D.A. G. the learned Advocate appearing on behalf of the opposite parties opposing the Rule controverted the argument advanced from the side of the Government. The learned Advocate submits that, neither the trial court nor the appellate court during disposal of the original suit and its subsequent appeal committed any illegality and irregularity. The learned Advocate further submits that, during trial of the original suit by sufficient credible evidence, the plaintiffs have proved that the original owner of the property transferred the suit land along with other land measuring 16 decimals of land by a registered sub kabala deed dated 04.02.1960 in favour of one Moyzuddin and it is also proved that Moyzuddin mutated his name in the Government seresta and paid rent. The learned Advocate also submits that Moyzuddin subsequently transferred the land in favour of one Shawkat Ali and Ruhul Amin. The plaintiff No. 01 subsequently by a kabala deed dated 03.12.1973 purchased 2 ½ decimals of land and by another sub-kabala deed of the same date Moyzuddin transferred 2 ½ decimals of land in favour of the father of plaintiff No. 02 from the suit jote and by successive transfer deeds, in this way the plaintiff-opposite parties have acquired right, title, interest and possession in the suit property and the suit property never became enemy property or vested property under the ambit of enemy property laws inasmuch as prior to 1965 A.D. the admitted original owner of the property, Gopi Dasi transferred the suit property in favour of Moyzuddin and handed over possession. The learned Advocate submits that the defendant, Government in order to prove the case of their pleading’s, did not adduce any oral or documentary evidence and as such the pleading’s case of the Government remain disproved under the ambit of law. The learned Advocate in support of his contention referred some decisions of this court and our Apex court reported in BCR (1988) 179, 50 DLR (AD) 70, 17 BLD 249 and 5 CLR (AD) (2017) 51. The learned Advocate lastly submits that there is no paper from the side of the Government-petitioner, showing that the property has become enlisted ever as enemy or vested property in the census list under the ambit of Defense of Pakistan Rules, 1965 and there is no gazette notification even from the side of the Government showing or treating that the property as vested or enemy property and the learned trial court as well as the appellate court after proper assessment of evidence and appreciation of law decided the merit of the suit in favour of the plaintiffs rightly and there is no misreading or non reading of evidence or non consideration of material facts resulting in an error in the decision occasioning failure of justice by which the impugned judgment and decree can be interfered with.
10. Considering the submission of the learned Advocates, having gone through the judgment and decree passed by the trial court as well as the appellate court along with the evidence on records, both oral and documentary, it transpires that, admittedly the suit property appertaining to mouza Chandpur under Meherpur District originally belonged to one Gopi Dasi and the S.A. khatian No. 343 was correctly prepared in her name. It has been specifically contended from the side of the plaintiffs in their pleadings that the original owner of the property by a registered sub-kabala deed dated 04.02.1960 A.D. transferred the suit property along with her other property in favour of one Moyzuddin (vide Exhibit-01), who subsequently transferred the land by several sub-kabala deeds. It is also the pleading’s case of the plaintiffs that the purchaser Moyzuddin after his purchase mutated his name in the Government Seresta and mutation kahtian was opened in his name (vide Exhibit-02). It is further case of the plaintiffs that the subsequent purchasers from Mayzuddin after their purchase also mutated their names and paid rent to the Government and the Government after accepting rent from them granted rent receipts. The series of documentary evidences showing the tenancy of the plaintiff’s predecessor and the plaintiffs including the Rent Receipts showing payment of rents to the Government has been proved under the law of Evidence (Act No. 1 of 1872), which has been marked as Exhibits-1 series, 2, 2(ka), 3, 3(ka),4 & 5. Besides these, the plaintiffs in order to prove their case have adduced 03 witnesses and to substantiate the solenama which was filed by the plaintiffs and the defendant No. 02 Ruhul Amin, the plaintiff No. 1 and the defendant No.2 deposed before the trial court.
11. P.W. 1, the plaintiff No. 01 Abdul Bari in support of their case corroborated their pleading in his examination-in-chief and testified in support of their documentary evidences. During cross-examination, the plaintiff No. 01 testified that the suit land has been surveyed by an “Amin” and in plot No. 6036 the area of land is 05 decimals. In a reply to a question from the side of the contesting defendant No. 01, P.W. 1 testified that he has seen Gopi Dasi who used to reside in Meherpur Municipality.
12. P.W. 2 Ruhul Amin is the defendant No. 02, and this witness in his deposition testified that he knows the parties and the suit land and he has purchased 05 decimals of land from the suit plot and for the suit property he has compromised with the plaintiffs, wherein the plaintiffs have their dwelling huts and the plaintiffs are residing therein. P.W. 2 frankly conceded in his testimony that in plot No. 6036, excess land which belong to the plaintiffs, has been wrongly recorded in his name and for that portion of land he entered into a solenama with the plaintiffs. During cross-examination from the side of the defendant, P.W. 02 testified at a stage that, during transfer of Gopi Dasi he (P.W. 2) along with one Emazuddin and others were present and Moyzuddin purchased the land prior to 38 years. This witness in his cross-examination as to the boundary of the suit land testified that, to the northern side of the suit plot, he (P.W.02) possess, to the western side of the suit plot, one Shawkat possess and to the eastern and Southern side, one Khoda Box possess. P.W. 3 one Nobizuddin is a deed-writer of Meherpur Sub-registry Office. The witness by his deposition proved the registered sub-kabala deed No. 577 dated 04.02.1960, which was written by one Abdul Karim and this witness knows the hand writing and signature of Abdul Karim, who is dead at the time of deposition of the witnesses. P.W. 3 identified the writings and signature of the scribe Abdul Karim. P.W. 3 Nobizuddin in his deposition deposed at a stage that he along with Abdul Karim and Munsur Rahman jointly wrote several deeds, who were deed writers. This witness identified another deed No. 9946 dated 03.12.1973, in which he was an attesting witness and he has identified his signature in that deed. This P.W.3 at a stage of his testimony also proved the registered deed No. 2717 dated 14.04.1989 and all these sub-kabala deeds have been properly marked as Exhibits.
13. Besides the evidence led form the side of the plaintiffs there is no evidence from the side of the contesting defendant i. e. the Goverment to corroborate their pleading’s case and with regard to this our Apex court in the case of Government of Bangladesh Vs. Paresh Chandra Gharami and others, 50 DLR (AD) 70 held, when the Government failed to prove the legal foundation for enlisting the suit property in the census report of the vested property and the plaintiffs led some evidence in support of their interest in the suit property, the case of the Government fails.
14. Apart from this, scrutinizing the series of the documentary evidences specially the rent receipts issued by the concerned Tahshilder, I find that the Government accepted the plaintiffs and their predecessor as tenants under him and granted rent receipts after accepting rent from them, and in this context; the learned Advocate on behalf of the opposite parties rightly referred the decisions of this court reported in BCR 1988 179 and 17 BLD 249. Hence, under the ambit of Section 115 of the Evidence Act, 1872 (I of 1872) the Government is now estopped from challenging the tenancy of the plaintiffs who were accepted as tenants under them by granting rent receipts after acceptance of rent.
15. On meticulous consideration of evidence in the instant case I have come across that, not only there exist acceptance of rent for the suit property by the present petitioner but also there has been mutation khatian in favour of the subsequent purchasers marked as Exhibit 02 series and the R.S. attested khatian followed by the information slip in respect of R.S. record of right (Exhibit- 4 & 5) showing that the concerned local Revenue Officer treating the suit property as a private property accepted the private individuals as tenants under the Government.
16. In the foregoing narrative, it is apparent from the face of the papers that from the side of the defendant-petitioner during trial of the original suit no witness was examined to corroborate the case of the Government and with regard to this, in the case of Government of Bangladesh Vs. Md. Mizanur Rahman 5 CLR (AD) 51 their Lordships held that, “ if no witness examined and no statement made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and in fact, it is only the pleading of the plaintiff.
17. Be that as it may, I have every reason to inclined such a view that the argument advanced from the side of the learned D.A.G. in support of the nature and character of the suit property is without basis and as to the case of the Government, there is nothing on record to justify that and the learned courts below rightly held apprising the evidence on record that the property-in-dispute is not a vested or non-resident property, rather; it is a private property which is being owned and possessed by the plaintiff-opposite parties.
18. Furthermore, it has been proved by sufficient credible tangible evidence that prior to 1965 A.D. the property-in-dispute has been transferred by the admitted original owner of the suit property, and as such the property can not be declared enemy property or vested property under the Defence Of Pakistan Rules, 1965. In absence of any Government notification published in any official gazette as to the nature of the property as enemy property or vested property as alleged from the side of the Government, it can not be held that the property, under the Purview of Defence Of Pakistan Rules, 1965 has become vested or non resident property or that it has been leased out in favour of any body.
19. Having regard to the facts, circumstances and the discussions referred to above, I am constrained to hold such a view that there is no misreading or non-reading of evidence or non-considering of material facts resulting in an error in the decision occasioning failure of justice from the side of the appellate court during passing the impugned judgment and decree, by dint of which it can be interfered with and as such the Rule has got no merit to succeed.
20. In the result; the Rule is discharged without any order as to costs. The impugned judgment and decree dated 12.11.2008 and 18.11.2008 respectively passed by the learned Joint District Judge, 2nd Court, Meherpur in Title Appeal No. 68 of 1999 affirming those of dated 24.02.1999 and 28.02.1999 respectively passed by the learned Senior Assistant Judge, Meherpur Sadar, Meherpur in Title Suit No. 326 of 1995 is hereby affirmed.
21. Communicate the judgment and order at once and send back the lower Court’s Record immediately.