Government of Bangladesh Vs. Amal Krishna Datta, 1 LNJ (2012) 618

Case No: Civil Revision No. 541 of 1996

Judge: Shahidul Islam,

Court: High Court Division,,

Citation: 1 LNJ (2012) 618

Case Year: 2012

Appellant: Government of Bangladesh

Respondent: Amal Krishna Datta

Subject: Declaration of Title,

Delivery Date: 2012-01-25

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Mr. Shahidul Islam, J.

Judgment
25.01.2012
 
Government of Bangladesh
...Defendant -Petitioner.
Vs.
Amal Krishna Datta
... Plaintiff-opposite parties. 
 
Specific Relief Act ( I of 1877)
Section 42
In the instant case the plaintiff has not stated in his plaint that his title was ever denied by the defendant. The suit for declaration of title was filed only for the cause of non-recording the plaintiff`s name in the ROR. Since there is no specific document of title showing accrual of title of the plaintiff in the suit land, the appellate Court was not justified in declaring title in the suit land.…(20)    
 
Easement Act (V of 1882)
Section 60(b)
Since the construction of the plaintiff has been proved and that construction having made prior to the State Acquisition and Tenancy Act came into operation and the homestead being permanent in nature, the plaintiff is entitled to retain his possession in the said homestead as per section 60(b) of the Easement Act. The defendant has stepped into the shoes of Ex landlord. The Ex landlord being the owner of the suit property did not take any step for eviction of the plaintiff from the suit land rather allowed him to reside in the said homestead. …(26)
 
State Acquisition and Tenancy Act (XXVII of 1951)
Section 28
Since there is no document to show that the plaintiff’s father was a servant under the Ex-landlord but the father of the plaintiff after taking permission from the Ex-landlord constructed his homestead about 69 years ago as has been proved by Pws 1 and 2 for which the said possession will be treated as permissive possession. The government has failed to adduce any evidence. If such  possession is accepted to be a servant under the Ex-landlord then section 28 of the SAT Act comes in aid to decide the right of the plaintiff. The government under the provisions of section 28 of the SAT Act can assess the rent for the suit land.
 
Salma Khatun –v- Zilaparishad Chittagong, 4 MLR (AD) 361; Guman Singh –v- Pyarellal and others, 117 IC 224; Jagat Singh and others –v- District Board, Amiritasan, AIR 1940 Lahore 509 ref.

Mr. Md. Abdur Rahman Howlader, A.A.G.
---For the petitioner.
Mr. H.N. Nandy with
Mr. Subrata Saha and
Mr. Kamal Hossain
---For the Opposite Parties

Civil Revision No. 541 of 1996
 
JUDGMENT
Mr. Justice Shahidul Islam:
 
        The Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and decree passed by the learned Sub-ordinate Judge, 3rd Court Mymensingh in Other Class Appeal No. 166 of 1994 reversing the judgment and decree passed by the learned Senior Assistant Judge, Sadar, Mymensingh in Other Class Suit No. 219 of 1991 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper.
 
2.     The opposite party as plaintiff instituted Other Suit No. 219 of 1991 in the Court of learned Senior Assistant Judge, Mymensingh seeking for declaration of title in the land appertaining to C.S. Khatian No. 95, C.S. Plot No. 1151, ROR No. 700, ROR plot No. 4971 measuring an area of .0574 ajutangsha within mouja Mymensingh under P.S. Kotwali District-Mymensingh contending, inter alia, that the said land belonged to Shasikanta Acharjaya Chowdhury, the landlord of Muktagacha Estate. The plaintiff’s father named Aboni Kanta Dutta was a Tahshildar of the said Estate who in liue of his service prayed for getting the suit land for construction of his dwelling house and that prayer was allowed. The plaintiff’s father constructed a homestead upon the suit land and started living therein. The Jamindar used to pay 50% of his salary and the rest 50% of salary was being adjusted towards the valuation of the suit property. This way the plaintiff’s father started possessing the suit land and homestead. The plaintiff’s father died in 1960 and since then the plaintiff has been possessing the same. The ROR record was wrongly prepared in the name of Pritimoni Basu. The plaintiff came to know about the said wrongly prepared ROR record on 6.4.1991. By that wrong ROR record there cast a cloud upon his title.
 
3.     It is the further case of the plaintiff that the landlord Shashikanta handed over possession in favour of the plaintiff’s father without fixing any rent and that remained a rent free land till the acquisition of the rent-receiving interest by Government. Thereafter the plaintiff’s father submitted several prayers to the Government for fixing rent but in vain. The plaintiffs also prayed to the Government on different occasions for fixing rent of the suit land but with no result.  The plaintiff is entitled to retain possession and the defendant Government is liable to fix rent against the suit land. The plaintiff got the certified copy of ROR on 7.4.1991 and thereafter filed the suit on 7.7.1991 seeking for declaration of title in the suit land.
 
4.     The Government contested the suit by filing written statement, denying the plaintiff’s case as well as the plaintiff’s possession and specifically bringing out a case that the suit land belonged to Shashikanta, Jamindar of Muktagacha Estate. After the rent-receiving interest was acquired by Government the suit land was vested with the Government automatically. The 2nd case was brought out that the ROR record was prepared in the name of Pritimoni and she migrated to India before 1965 and the suit land was vested with the Government as being vested property.
 
5.     The learned Assistant Judge framed the following issues:-
  1. Is the suit maintainable as it stands frame?
  2. Has the plaintiff any right, title, interest and possession in the suit land?
  3. Is the plaintiff entitled to a decree for declaration of his title in the suit land?
  4. What relief if any the plaintiff is entitled to?
6.     To prove the case, the plaintiff examined 4 witnesses but failed to produce any documentary evidence to prove his title in the suit property.
 
7.     The Government only cross-examined the plaintiffs witnesses but failed to adduce any oral or documentary evidence to prove that the suit property was ever taken over by Government as vested property or was vested with the Government. The learned Assistant Judge by the judgment and decree dated 2.5.1994 dismissed the suit against which the plaintiffs preferred Other Appeal No. 166 of 1994. That appeal was heard by the learned Sub-ordinate Judge, 3rd Court, Mymensingh who by the impugned judgment and decree dated 29.3.1995 allowed the appeal, set aside the judgment of the trial Court and decreed the suit declaring title of the plaintiff in the suit land.
 
8.     Being aggrieved by the said judgment and decree the Government being represented by the Deputy Commissioner, Mymensingh has obtained the instant Rule.
 
9.     Mr. Md. Abdur Rahman Howlader, the learned Assistant Attorney General appeared for the petitioner and Mr. Subrata Saha with Mr. Kamal Hossain, the learned Advocates appeared for the plaintiff opposite parties.
 
10.   During hearing, Mr. H. N. Nandy and Mr. M. Shamsul Hoque, the learned Advocates participated the hearing to help the plaintiff opposite parties of the Rule.
 
11.   Mr. Md. Abdur Rahman Howlader, the learned Assistant Attorney General taking me through the judgments of the Courts below and referring to the evidence on record submitted that the plaintiff has miserably failed to produce any documentary evidence to prove his title in the suit property. He submitted that the oral evidence adduced by him are not sufficient to construe any title in the suit land. He further submitted that there are lot of contradictions in the evidence of the PWs regarding the question of title and possession as well. He further submitted that the learned Assistant Judge after considering the evidence on record has dismissed the suit lawfully but the Court of appeal without reversing those finding has decreed the suit illegally. He prayed for setting aside the appellate Court’s judgment and for maintaining the trial Court’s judgment.
 
12.   Mr. Subrata Saha, the learned Advocate submitted that the plaintiff although failed to produce any documentary evidence in support of his plaint’s case but he was able to prove the fact that his father constructed a homestead upon the suit property at least 65 years prior to the filing of the suit and as such there accrued good title in favour of the plaintiff, after lapse of 65 years. He prayed for maintaining the impugned judgment and decree. Mr. H. N. Nandy on the other hand submitted that during the British regime there was a practice prevailing amongst the Jamindars that they used to allow their employees to use and occupy lands without fixing any rent and as such the “Crowns Grants Act, 1895” was promulgated. He further submitted that the suit land was handed over by Jamindar in favour of the plaintiff’s father under the said law and the plaintiff’s father constructed his homestead therein and as such there accrued a good title in favour of the plaintiffs father after the rent-receiving interest was acquired by Act No. 28 of 1951. He further submitted that the said “Crowns Grants Act” has been adopted by the Government of Bangladesh as Government Grants Act, 1895 (Act No. 15 of 1895). He prayed for maintaining the impugned judgment and decree.
 
13.   I have considered the submissions made by the learned Advocates for the parties as well as by Mr. H. N. Nandy. I have gone through the judgment of both the Courts below and the evidence on record very carefully. In the instant case the plaintiff has sought for declaration of title in the suit land claiming that his father was a servant of the Jamindar of Muktagacha Estate and the Jamindar granted him the property for construction of his homestead and accordingly the plaintiff’s father constructed homestead before the State Acquisition and Tenancy Act came into operation. The plaintiff’s homestead is standing upon the suit property and that has been established by oral evidence in as much as the said fact has not been denied by the Government during cross-examining the PW1. By now, it has been settled that a plaintiff seeking declaration of title in the suit property on the basis of any settlement must prove settlement beyond doubt. If the plaintiffs failed to prove settlement, mere possession would not create any title. In the instant case the plaintiff has made out a case that his father was serving under the landlord Shashikanta Acharaya of Muktagacha Estate who allowed the plaintiff`s father to construct a homestead thereon the suit land without fixing any rent and in lieu of 50% of his salary as was fixed by Jamindar.
 
14.   PW1 in his examination-in-chief added the following evidence:- “আমার পিতা মুক্তগাছা জমিদারের তহশিলদার ছিলেন। আমার ভভধ্বষ বাড়ী, নান্দিনা হইতে মুক্তাগাছায়  আসিয়া চাকুরী করতে অসুবিধা হয় বিধায় চাকুরীর ২/৩ বৎসর পর মহারাজের  নিকট বসবাসের জন্য কিছু ভূমি চাহেন। তখন জমিদার মহাশয় আমার পিতার প্রার্থনা মঞ্জুর করিয়া ববখষ চাকরান হিসাবে নালিশী ভূমি আমার পিতাকে অর্পন করেন এবং পিতার বেতন অর্ধেক কমাইয়া দেন। ইহা প্রায় ৬৮/৬৯ বৎসর পূর্বে। আমার পিতা নালিশী জমিতে দখল গ্রহণ করিয়া মাটি ফেলিয়া ভূমি উন্নতি সাধন করিয়া ঘর দরজা নির্মাণক্রমে তথায় বসবাস করতে থাকেন।” Those evidence have not been denied by the Government during cross-examining the plaintiff. The Government did not examine any witness to deny this fact.
 
15.   In view of the above and to meet the ends of justice, I need to frame the following points for determination to decide the matter in controversy as per law:-
  1. Whether the plaintiff has been able to prove the fact that his father was a servant to the Ex landlord and was granted the suit land for construction of his homestead?
  2. Whether the appellate Court was justified in declaring title of the plaintiff in the suit land whenever the plaintiff failed to produce any documentary evidence in support of his title?
  3. Whether the law of equity and other existing laws in Bangladesh provide for any scope for granting any relief in favour of the plaintiff.
  4. Whether Government Grants Act, 1895 (Act XVI of 1895) does come in aid of the plaintiff to get a decree?
16.   Let us decide the points for determination No. (i).

        The plaintiff was examined on 6.11.1994. He exhibited his passport, where from it appears, his date of birth was 11.7.1956. He added that his father constructed homestead upon the suit land at about 68-69 years ago upon filling up the land and constructing structures thereon. He further added that as per his father’s prayer the Jamindar allowed him to construct homestead. He further added that after the rent receiving interest was acquired by Government his father acquired title in the suit land but no document was produced showing that the Government ever accepted him as a tenant. One Sushil Kumar Roy was examined as PW2 who was 76 years old on the date of examining him on 17.4.1994. This PW2 added that the plaintiff’s father got the suit land in lieu of his service. This PW2 claimed him to be an Ex Tahshildar of Muktagache Estate. His evidence was not shaken during cross-examination. PW3 and PW4 were only 39 and 38 years of age while examining them in the Court and as such their evidence is not relevant for the purpose of deciding this issue. The plaintiff’s case is that no rent was fixed by the Jamindar at the time of allowing the plaintiff’s father to construct a homestead upon the suit land. The Government although contested the suit but failed to produce any document showing the suit land was every taken over by Government after the State Acquisition and Tenancy Act came into operation or was declared as vested property. Government also could not produce any document that any rent was fixed for the suit land.
 
17.   In view of the above it has been proved beyond doubt that the plaintiff’s father was in possession in the suit land since for a long time and long before the rent-receiving interest was acquired by the Government and that land was a rent free land. The plaintiff being the son of Abani Kanto has been in possession in the suit land and the suit land is admittedly a homestead. Since the PW2 being aged about 76 years old man has corroborated the evidence of PW1 and since there is no other evidence to discard the evidentiary value of PW1 and PW2, I am of opinion that the plaintiff’s father got the suit land as a rent free land and constructed his homestead. Section 28 of the State Acquisition and Tenancy Act provides the provisions for assessment of rent of service tenancy which runs thus:-

“28. In preparing or revising a record-of-rights under this Chapter, the Revenue-officer shall fix, in respect of every land held within any area to which such record relates by a person who has been found on evidence produced before him to be entitled to hold such land free of rent in consideration of some service to be rendered, a rent at a rate which the Revenue-officer may deem fair and equitable having regard to the rates of rent generally paid by occupancy raiyats for lands of a similar description and with similar advantages in the same village or in the neighbouring villages and shall record such person in the record-of-rights as a raiyat:
Provided that nothing in this section shall apply to any land held within the boundaries of a tea estate or any other industrial organization.”
 
18.   In view of the above I find that the Courts below without considering the evidence of PW1 and Pw2 have passed the judgment upon their imaginary views. Accordingly the issue decided affirmatively in favour of the plaintiff opposite parties.
 
19.   Let us take up the point No. 2 for determination.

Declaration of title in the suit land is provided under section 42 of the Specific Relief Act,1877 which runs:-

“42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”
 
20.   In the instant case the plaintiff has not stated in his plaint that his title was ever denied by the defendant. The suit for declaration of title was filed only for the cause of non-recording the plaintiff`s name in the ROR record. Since there is no specific document of title showing accrual of title of the plaintiff in the suit land, the appellate Court was not justified in declaring title in the suit land. This view finds support from the case of Salma Khatun –v- Zilaparishad Chittagong, reported in 4 MLR (AD) 361.
 
21.   In view of the above the appellate Court was not justified in declaring title of the plaintiff in the suit land.
 
22.   Let us take up the issue No. iii and iv for decision.

In the plaint, at paragraph 11(ga), the plaintiff has prayed for the following relief:-
 
“আদালতের ন্যয় বিচারে বাদী অন্যান্য যে যে প্রতিকার পাইতে পারেন তাহারও ডিক্রি দিতে আজ্ঞ হয়।”
 
23.   The learned Assistant Judge has framed the issue No. 4 in the following manner:-

“What more relief if any the plaintiff is entitled to?”
 
24.   From the judgment it shows that the said issue has not been decided on merit by either of the Courts below.
 
25.   It is the settled law that, from the materials on record, if any party to the litigation is found to be entitled to  any remedy as per the law of equity and good conscience, the Court should give that party the said relief, for the ends of justice. “Equity” means right as founded on the laws of nature, moral justify of which laws are the imperfect expression. Equity implies system of law which is more consonant than the ordinary law with openions current for the time being as to a just regulation of the mutual rights and duties of men living in a civilized society. A court of law should interpret laws rightly. Every court in India or Bangladesh is a court of equity as well as of law. It possesses as inherent in its constitutional all such powers as are necessary to do the right and to undo the wrong. The Court should interpret the laws to decide the matters in controversy as per the law of equity. Equity means “that portion of remedial justice which was formerly exclusively administered by a court of equity as contra-distinguished from that portion which was formerly exclusively administered by a court of common law. In the instant case the father of the plaintiff got permission to construct his homestead in the suit land, from the Ex landlord, and constructed his homestead at about 68/69 years ago. We have seen that no rent was fixed by the Ex landlord as against the suit land. The Government of the province of East Pakistan as well as the Government of Bangladesh did not fix any rent as against the suit land. Upon a careful reading of the plaint, it appears that the Ex landlord allowed the plaintiff’s father either in liue of service or orally granted him permission to construct homestead and accordingly a homestead was constructed. The age of the homestead is more than 60 years and that has been proved by PW1 and PW2. Since there is no document to show that the plaintiff’s father was a servant under the Ex land we have no option but to accept that the said possession of the plaintiff`s farter was a permissive possession, as per the evidence of the PW1 and PW2. The Government has deliberately failed to adduce any evidence. I am inclined to decide this issue upon the evidence of PW1 and PW2. If the plaintiff’s fathers possession is accepted to be a servant under the Ex landlord then section 28 of the State Acquisition and Tenancy Act comes in aid to decide the right of the plaintiff. In that case the Government is bound to fixe a rent as against the suit land and the plaintiff is bound to pay rent to the Government. If the said fact is not believed the case of permissive possession of the plaintiff’s father from the ex landlord stands and thereafter the construction of a homestead upon the suit land stands. Since a case of permissive possession coupled with construction of a homestead has been proved, I do hereby extends my hands to the Easement Act, chapter vi “Licences” for deciding the issue as the said Act has been made applicable in Bangladesh vide Act viii of 1973. The plaintiff father constructed homestead and being in possession therein died. The Jaminder did not revoke licence. After the liberation of Bangladesh the Government has not taken any step for eviction of the plaintiff. In the meantime more than 60 years have passed. The construction made upon the suit land is permanent in character. A licensee acting upon a license if made any stracture of permanent in nature the fate of that licence comes under section 60 (b) of the Easement Act.  Section 60 of the Easement Act provides the following provisions:-

“60. A license may be revoked by the grantor, unless-
  1. It is coupled with a transfer of property and such transfer is in force:
  2. The licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.”
26.   Since the construction of the plaintiff has been proved and that construction having made prior to the State Acquisition and Tenancy Act came into operation and the homestead being permanent in nature, the plaintiff is entitled to retain his possession in the said homestead as per section 60(b) of the Easement Act. The defendant has stepped into the shoes of Ex landlord. The Ex landlord being the owner of the suit property did not take any step for eviction of the plaintiff from the suit land rather allowed him to reside in the said homestead. In the case of Guman Singh –v- Pyarellal and others, reported in 117 IC 224 it has been held execution of permanent work by licensee is not revocable. In the case of Jagat Singh and others –v- District Board, Amiritasan, reported in AIR 1940 Lahore 509 it has been held that a licensee acting on the licence has built works of permanent character, the licensor cannot revoke licence even on payment of compensation. Since the plaint discloses the fact that the Ex landlor allowed the plaintiff’s father to construct his homestead in the suit land, the decisions referred to above are applicable in the instant case and the plaintiff is entitled to retain his possession in the suit land although his title cannot be declared by Court of law. The Government under the provisions of section 28 of the State Acquisition and Tenancy Act can assess the rent for the suit land. The Government Grant Act being No. 15 of 1895 have got no application in the matter.
 
27.   In view of the above I am of the view that the plaintiff should apply before the concerned Additional Deputy Commissioner (Revenue) for fixing a rent against the suit land and in that case the Additional Deputy Commissioner (Revenue) is directed to fix a rent and to realize rent from the plaintiff following the provisions of section 28 of the State Acquisition and Tenancy Act.
 
28.   From the facts and circumstances and discussions made above, the impugned judgment and decree are not sustainable in law and is liable to be set aside and the Rule is liable to be made absolute with the finding that the declaration of title as made by the appellate Court is set aside and the possession of the plaintiff in the suit land is declared as protectable under section 60(b) of the Easement Act. Government is bound to fix a rent against the suit land.
 
29.   In the result, the Rule is made absolute with the above observation, however, without any order as to costs.
 
        The office is directed to send down the lower Court’s record.
 
Ed.