Jarina Khatun and others Vs. Gani Howlader and others

Case No: Civil Revision No.172 of 1997

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Abdus Sobhan Tarafder,Md. Rezaul Huq,Deb Das Samadder,,

Citation: 53 DLR (2001) 53

Case Year: 2001

Appellant: Jarina Khatun and others

Respondent: Gani Howlader and others

Subject: Property Law,

Delivery Date: 2000-12-03

Jarina Khatun and others Vs. Gani Howlader and others
53 DLR (2001) 53
 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Abdur Rashid J
 
Jarina Khatun & others ......................Petitioners
Vs.
Gani Howlader & others ……..............Opposite Parties

 
Judgment
December 3, 2000
 
Code of Civil Procedure (V of 1908)
Order VI rule 17
If the application is found to be fit to allow the plaintiffs to add the prayer for confirmation of possession on payment of proper court fees then it can also allow the defendants to file additional written statement. There may then be a necessity for additional evidence to be adduced by the parties for determining the real question in controversy.
 
Cases Referred To-
Nawab Ali Dhakua Vs. Abdur Rashid and others, (1994) 14 BLD (AD) 229; Abdul Mannan and others Vs. Akram Ali and others, 43 DLR (AD) 125 & Golam Hafez Mia Vs. Khadem Ali Meah, 29 DLR (AD) 311.
 
Lawyers Involved:
Abdus Sobhan Tarafder with Ambia Bulbul Reza, Advocates—For the Petitioners.
Md. Rezaul Huq, Advocate—For the Opposite Party Nos. 2-7.
Deb Das Samadder with Tapash Kumar Biswas, Advocates—For the Opposite Party Nos. 1 & 8.
 
Civil Revision No.172 of 1997.
 
JUDGMENT
 
Md. Abdur Rashid J:This Rule was obtained by plaintiff upon making an application under section 115 of the Code of Civil Procedure against judgment and decree dated 12-6-1995 passed by Subordinate Judge, 3rd Court, Barisal in Title Appeal No. 298 of 1993 affirming those dated 12-9-1993 passed by Assistant Judge at Bakhergonj in Title Suit No. 143 of 1984 dismissing the suit.
 
2. The plaintiff Tayeb Ali instituted the suit for declaration of his title in the suit land and also for a declaration that the VP Case initiated in respect of the suit land is illegal, void and without any lawful authority. On the death of Tayeb All, his heirs, present petitioners, after being substituted continued with the proceedings.
 
3. The plaint Case, in short, is that: 8 annas of plot No. 1522 measuring 0.08 acre and 0.31 acre of plot No. 1524 appertaining to RS Khatian No. 2325 and SA Khatian No. 992 originally belonged to Kashem Ali and Sorju Bala. Other 8 annas of plot No. 1522 was owned and possessed by the plaintiff and SA Khatian Nos. 1446 and 1333 were recorded in his name. The suit land measuring 0.39 acre was purchased by Kali Mohan Mukhopadhya on an auction sale held on 5-1- 1953. Said Kali Mohan Mukhopadhya obtained sale certificate and got possession of the land through Court on 18-4-1954.
 
4. While Kali Mohan was thus owner in possession of the said land transferred the same by registered kabala dated 8-6-1962 to Afsar Ali Howlader and Mokter Ali Howlader and delivered possession to them. Thereafter, said Afsar Ali Howlader and Mokter Ali Howlader transferred the suit land by a registered deed dated 10-4-1967 to the original plaintiff. The plaintiff possessed the suit land since then till his death. After the death of the plaintiff, the petitioners are in possession of the suit land.
 
5. In order to grab the suit property, one Kadam Ali got the VP Case No. 43/80 initiated and on 2-6-1980 obtained lease. When the plaintiff went to pay rents to the Tahsil Office, the Tahshildar declined on 1-12-1981 to receive the rent and therefore, the original plaintiff for the first time came to know that the land was leased out as vested property. Such action of vested property authority cast a doubt over his title.
 
6. Defendant Nos.1 and 2, Additional Deputy Commissioner (Rev) Bakhergonj and Bangladesh, represented by the Deputy Commissioner, Barisal were the original defendants and defendants 3, 4, 5 and 6 were subsequently added. Defendant Nos. 1 and 2 though filed a written statement but ultimately did not contest the suit. The Courts below therefore, did not record their Case as stated by them in their written statement in the judgment. Defendant No.3 having died his heirs defendant Nos. 3(Ka) to 3(Chha) and defendant No. 4 jointly filed a written statement and contested the suit. Similarly, defendant Nos. 5 and 6 also contested the suit by filing another written statement.
 
7. The Case of the defendant Nos. 3(Ka) to 3 (Chha) and 4, in short, is that, Kashem All died unmarried in 1956 and the suit land devolved upon his uncle Saijuddin Howlader. On the death of Saijuddin Howlader defendant No. 3(Ka) and defendant No. 4 inherited the said lands. Defendant Nos. 3 and 4 challenged the enlistment of the suit property as a vested property in Title Suit No. 404 of 1983 instituted in the Second Court of Munsif at Barisal and the said Title Suit was re-numbered as 264 of 1984 in the Court of Assistant Judge at Bakhergonj on transfer. The said suit was decreed on contest against the Government and defendant Nos. 5 and 6 declaring VP Case No.43 of 1980 as illegal and without any lawful authority. They also claimed to be in possession of the suit land on payment of rents. Defendant No. 3 transferred some lands to defendant No. 3(Ka) by a deed of gift dated 24-5-1989.
 
8. Defendant Nos. 5 and 6 filed the written statement denying the Case of the plaintiff and also that of defendant Nos.3 and 4. They contended that both Kashem Ali and Saraju Bala migrated to India. Before leaving for India, Kashem Ali sold the land along with other land to their father. Thereafter, the heirs of only uncle of Kashem Ali executed and registered a sale deed. They mainly contended that as they were in possession of the suit land the vested property authority granted lease of the suit land to them and they are in possession.
 
9. On the pleadings, various issues including the issue whether the suit is hit by section 42 of Specific Relief Act and whether the plaintiff has any right, title and interest and possession in the suit land were framed.
 
10. The trial Court on consideration of the statements of PW1 Alfaz Ali Howlader, son of late Tayeb Ali Howlader, the original plaintiff, that his father did not possess the suit land by sale deed and that defendant No. 3 possessed the suit land, came to a finding that as the plaintiff did not claim to be in possession, the suit for declaration of title simpliciter under section 42 of the Specific Relief Act is not maintainable. Accordingly, the trial Court dismissed the suit.
 
11. On the appeal, the appellate Court also affirmed such findings of the trial Court and is missed the appeal thereupon.
 
12. Mr Abdus Sobhan Tarafder, the learned advocate appearing for the petitioners, drew my attention to the fact that in the appeal, the petitioners made an application for amendment of the plaint on the ground that aforesaid PW 1 did not make such a statement that his father did not possess the suit land by virtue of purchase or that defendant No. 3 possessed the suit land. PW1 actually deposed that they possessed the suit land by virtue of purchase and the defendant No. 3 did not possess the suit land. In the first sentence ‘No’ was added and in the last sentence ‘No’ was omitted due to mistake. They, therefore, prayed for adding further relief for confirmation of possession in the suit land as consequential to the main prayer for declaration of title on payment of ad valorem Court fee. Without applying its mind the appellate Court rejected the said application as irrelevant and belated. Mr Abdus Sobhan Tarafder also submitted that in the trial Court, the plaintiff proved their title and possession but the Trial Court without considering the evidence on record disposed of the suit on those mistaken statements as recorded. Appellate Court also without properly framing the points for determination and discussing the evidence on record disposed of the appeal by a non-speaking judgment in confirming the judgment of trial Court and the judgment of the appellate Court is no judgment in the eye of law, particularly, under Order 41 rule 31 of the Code of Civil Procedure.
 
13. Mr Rezaul Huq, learned Advocate appearing for the opposite parties, submits that the judgment of the appellate Court being a judgment passed in affirmance of that of the trial Court need to be so elaborate as that of a reversal. He further submits that when PW 1, son of the original plaintiff, Tayab Ali admitted in his evidence that his father did not possess the suit land on the basis of a ‘Kabala’ and that the defendant No. 3 possessed the suit land, no fruitful purpose would be achieved by remand. He also cited the Cases reported in 43 DLR (AD) 125 and 14 BLD (AD) 229.
 
14. With regard to the prayer for amendment of the plaint, he submits, the application was filed for addition of a prayer for a confirmation of possession and not recovery of possession. On the aforesaid statements of PW 1, the plaintiffs have no chance of success in getting such relief.
 
15. Lastly, he submits that if the facts and circumstances of the Case necessitate any remand, the Case should be sent to the appellate Court and not to the trial Court in view of the delay already occasioned in the proceeding of the suit.
 
16. I have perused the judgments of the Courts below and the revision application upon which the above Rule was issued. I have also examined the evidence, both oral and documentary, on record.
 
17. The Case of the plaintiffs-petitioners is that, Kashem Au and Sarujo Bala were the original owners in possession of the suit lands. Then, Kali Mohan Mukherjee purchased the suit lands in an auction held on 6-1-1953. He obtained a sale certificate and got physical possession of the lands on 18-4-1954. He also annulled all encumbrances. While Kali Mohan was thus in possession, he transferred the suit lands by a registered deed of sale dated 8-6-1962 to Afsar All Howlader and Mokter Ali Howlader. These two brothers, Howladers possessed for some time and then, sold the suit lands to Tayeb Ali, father of the present plaintiffs, by registered sale deed dated 10-4-1967. Tayeb Ali possessed the suit lands for more than the statutory period of 12 years and then died leaving the present plaintiffs as his only heirs and legal representatives. During the survey under the state acquisitions, the record of rights in respect of the suit lands were wrongly prepared in the names of said original owners, Kashem All and Sarujo Bala who were divested of all their interest in the suit lands after the auction sale, and such record had no basis but cast a doubt on the title of the petitioners.
 
18. On 1-12-1981, the plaintiff for the first time came to know that VP Case was started in respect of the suit lands and one Kadam Ali obtained a yearly lease.
 
19. After due-consideration of RS Khatian Nos. 2325 and 2326, Exhibit ‘Cha’ and ‘Cha-l’, the judgment passed in Title Suit No. 295 of 1956, Exhibit No. 3 and revenue sale, Exhibit No. 8, the trial Court found that Kali Mohan Mukherjee purchased the suit lands in auction. Kali Mohan Mukherjee transferred to Afsar Ali Howlader and Moktar Ali Howlader by a registered deed of sale dated 18-6-1962 Exhibit No.4. Then, Afsar Ali Howlader and Mokter Ali Howlader sold the suit lands to Tayeb Ali by a registered deed of sale dated 10-4- 1967, Exhibit No. 4(Ka).
 
20. The trial Court also found the notice Exhibit No. 2 by which Kali Mohan annulled all the encumbrances and his employees collected rents from the ‘Karsha’ raiyots. But the Court was of the view that the right or interest of the ‘Karsha’ raiyots was not disappeared. No proceeding was instituted for eviction of the ‘Karsha’ raiyots. The SA record of rights was prepared in the names of Kashem Ali and Sarujo Bala to the extent of 12 annas and 4 annas respectively. This finding of the trial Court is however contrary to the Case of both defendants 3 and 4 and also of defendants 5 and 6. Their common Case is that, during the partition in 1947, both Kashem Ali and Sarujo Bala migrated to India and settled there. Kashem Ali died there. In view of its own findings on title as stated above, the finding of the Court that Kali Mohan Mukherjee possessed the suit lands was not proved is not only incongruous but also contrary to the pleadings as well as the evidence on record.
 
21. The trial Court also found that the decree passed in Title Suit No. 264 of 1984, declared the initiation of a VP Case in respect of the suit lands illegal, and without any lawful jurisdiction, (Exhibit No. ‘Uma’ and ‘Uma-1’). Appeal preferred by a brother of defendants 5 and 6 therefrom being Title Appeal No. 103 of 1989 was also dismissed. The vested property authority did not take any step against the decree and, as such, the said authority cannot have now anything to say. The trial Court therefore concluded that defendants 5 and 6 could not have any right or interest as lessee under the vested properties authority. It also held that defendant Nos. 5 and 6 failed to prove that they are the heirs of the original recorded tenant, Kashem Ali, Exhibit No. ‘Nia’.
 
22. Thereafter, with regard to the possession, the trial Court found that the plaintiffs paid rents for the suit lands from 1382 BS to 1386 BS by Exhibits No. 5 to 5(Ga) and the defendant 3 paid rents since 1954. The plaintiffs also paid rents for some years intervening. But it reasoned, when PW 1 testified that his father did not possess the land on the basis of sale deed, and that the defendant No. 3 possessed the suit land, and held, the consideration of the testimonies of the witnesses examined by the plaintiffs on possession was unnecessary. The trial Court also did not give any decision that the defendants 3 or 4 had any right or title in the suit lands.
 
23. It appears, however, from the judgment of the trial Court that it held solely upon those two statements of PW 1 that as the plaintiffs had no possession in the suit land, so their suit is not maintainable under section 42 of the Specific Relief Act. With regard to the second relief, it found that as in Title Suit No. 264 of 1984 VP Case No.43 of 1980 was already declared to be illegal and without jurisdiction, and the VP Case is no more effective or binding upon the plaintiffs, so there is no necessity to decide the issue either in favour or against the plaintiffs or defendants.
 
24. It is my misfortune that I had to consider the judgment of the trial Court elaborately because I could not find any consideration by the appellate Court of the Cases of the parties. The appellate Court below just recorded its concurrence with the findings of the trial Court on the issues as framed in the suit, and held that it did not find any reason to differ with the decision of the trial Court on main issues that the plaintiffs could not get any relief and the suit would be dismissed. Before recording its conformance, it did not consider a single document adduced by the parties nor the testimony of any witness. I find the disposal of the appeal did not receive any application of mind of the Subordinate Judge, Third Court, Barisal who heard the appeal. Similarly, he failed to consider the application for amendment of the plaint made on 3-5-1995.
 
25. I find that the plaintiffs examined 4 witnesses including a son of original plaintiff, Tayab Ali to prove their Case on possession. It is true, there are two statements in the deposition of PW 1 Alfaz Ali, a son of the original plaintiff, Tayeb Ali as recorded which are “আমার বাবা কবলা মূলে দখল করে না” and “পক্ষভুক্ত তিন নম্বর বিবাদীরা দখল করে” I also find that before the conclusion of his examination in-chief, PW 1 categorically has denied the suggestions that they did not possess the land and that the defendant Nos. 3 and 4 possess the suit land. Moreover, PW 2 Probhat Chandra Das, who was an employee in the sherista of Kali Mohan Mukherjee, proved that Kali Mohan purchased the suit lands in auction, obtained sale certificate and got possession. Then, they annulled the encumbrances by service of notice. He also testified that Kali Mohan transferred the suit lands to Afsar Ali Howlader and Mokter Ali Howlader by a registered sale deed dated 8-6-1962 and Tayeb Ali, original plaintiff purchased the suit lands from said Howladers and possessed. He also identified the signature of Kali Mohan.
 
26. PW3 Afsar Ali testified that he and his brother transferred the suit land to Tayeb Ali by a registered deed of sale dated 10-4-1967. They purchased the said lands from Kali Mohan Mukherjee. Tayeb Ali possessed the suit land and after his sons were possessing the said lands. PW 4 Amjad Khan also testified that Tayeb Au used to cultivate the suit lands and on his death, his sons were cultivating the said lands.
 
27. Learned Advocate for the petitioners submits before me that in those two sentences PW 1 actually stated that “আমার বাবা কবলা মূলে দখল করে” and “পক্ষভূক্ত তিন নম্বর বিবাদীরা দখল করেনা” According to him, in the first sentence, the word “না” was added and in the second sentence “না” was omitted due to mistake. The mistake would be apparent if the entire evidence of the PW 1 and those of other PWs on the question of possession are read and considered. He also submits that the petitioners could learn about the mistake only after taking a copy of the judgment in order to prefer an appeal and they had no opportunity to seek any correction before the trial Court.
 
28. I find the trial Court read those two lines only and allowed itself to be swayed away. It did not conceal its mind by saying that in view of those statements, consideration of the evidence of other witnesses was not necessary. It should be mentioned that the trial Court considered the series of documents of title and also the rent receipts adduced by the plaintiffs. It did not find anything against the documents. But it preferred not to draw any conclusion on the title from those documents, as it found the plaintiffs were not in possession on the basis of those statements of PW1 only.
 
29. It has already been stated above that the appellate Court did not consider any evidence at all. Rather, the appellate Court rejected the application for amendment as irrelevant for consideration that as the mistake in recording the deposition of PW1 as mentioned in the application was not raised before the trial Court at the proper time.
 
30. In the aforesaid facts and circumstances of the Case and the evidence on record, the submissions of the learned Advocate for the petitioners deserve serious consideration. It is true, the parties are litigating since long after the institution of the suit on 28-12-1981. In exercise of the jurisdiction under section 115 of the Code of Civil Procedure, I am afraid; I can decide the pertinent question whether there was any such mistake during recording the statement of PW1 Alfaz Ali, and if the answer is in the positive, then whether the application of the plaintiffs for amendment of the plaint should be allowed or not. If the Case is a fit Case for remand then where to send. The learned Advocate for the opposite party requests for remand to the appellate Court, in view of the delay.
 
31. I have already found that the appellate Court did not consider any evidence on record nor gave its own decision on the question of title and possession. Moreover, it is the trial Court which can effectively dispose of the application for to be fit to allow the plaintiffs to add the prayer for confirmation of possession on payment of proper Court fees, then, it can also allow the defendants to file additional written statement, if they so desire. There may be a necessity for additional evidence to be adduced by the parties for determining the real question in controversy between the parties.
 
32. I have also considered the Cases cited by the learned Advocate. In the Case of Nawab Ali Dhakua Vs. Abdur Rashid and others, (1994)14 BLD (AD) 229, the suit for declaration of title and confirmation of possession was dismissed by the trial Court and on appeal, this Division dismissed the appeal and affirmed the decision of the trial Court. In further appeal before the Appellate Division, it was held that
 
“The importance of considering the evidence independently cannot be over emphasized and the appellate judgment must reflect such consideration but in the Case of affirming of the findings of the trial Court, the narration of the entire evidence and reiteration of the reasons given by the trial Court are not essential but expressions of general agreement with those of the trial Court and proving additional reasons, if any, are generally considered sufficient............... Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. In Case of reversal of a finding of fact, however, the consideration of the evidence, of necessity, has to be thorough and more elaborate. This Case has no manner of application to the facts of the Case. Rather, here, the judgment of the appellate Court is based on total non-consideration of the evidence on record and absence of any finding of its own. In view of provisions of Order XLI rule 31 of the Code of Civil Procedure, such judgment must be held to be no judgment at all in the eye of law.”
 
33. In the Case of Abdul Mannan and others Vs. Akram Ali and others, 43 DLR (AD) 125, the suit for declaration of title on the basis of settlement from the landlords was dismissed by the trial Court but on appeal, the appellate Court allowed the appeal and decreed the suit finding the title and possession of the plaintiffs. In revision therefrom, this Division set aside the judgment of the appellate Court and sent back the suit to the trial Court on remand being of the view that finding of title of the plaintiff by the appellate Court was based on misreading of the evidence on record particularly, the rent receipts further appeal, the Appellate Division allowed the appeal and set aside the impugned judgment and directed this Division to dispose of the revision applications on merit on the joint prayer of the learned Counsels on the ground that the entire evidence, both oral and documentary, was available on record and there was no necessity for remand. This Case also does not support the opposite party.
 
34. Under Order VI rule 17 of the Code Civil Procedure, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties
 
35. In Golam Hafez Mia Vs. Khadem Ali Meah, 29 DLR (AD) 311, in a suit for declaration, the trial Court found the plaintiff was in possession of the suit lands. But the first appellate Court reversed the finding and found the defendant in possession and, accordingly, held that the suit was hit by section 42 of the Specific Relief Act in the absence of a prayer for consequential relief. In second appeal, a prayer was made before this Division to allow the plaintiff, to amend his plaint by adding the prayer for recovery of possession, but it was refused and the appeal was dismissed. In further appeal before the Appellate Division, the prayer was allowed by the Appellate Division and the s was remitted back to the trial Court for allowing the plaintiff to amend the pleading by adding the prayer for recovery to possession on payment of proper Court fees. The defendant was also given opportunity to file additional written statement. The trial Court was directed to decide the question of recovery of possession and ancillary question of adverse possession of the defendant if so raised. The Court was also given the liberty to allow the parties to adduce additional evidence, if the parties so pray and the Court think fit to allow.
 
36. For the reasons stated above, in my judgment, the Case should be sent back on remand to the trial Court.
 
In the result, the Rule is made absolute. The judgments and decrees of both the Courts below are set aside. The Case is sent back on remand to the Court of Assistant Judge at Barisal. The Court shall consider the application for amendment of the plaint for adding a prayer for confirmation of possession if the prayer is allowed; the Court would be at liberty to allow the defendants to file additional written statement, if any, they want to. Then, the Court would decide finally all the questions at issue between the parties afresh in accordance with law and in the light of the above observations, if necessary, on further evidence as may be adduced by the parties. The Court would abide by the ultimate result of the suit.
 
Ed.