Kalipada Das and others Vs. Jessore Municipality and others, (Soumendra Sarker, J.)

Case No: Civil Revision No. 5274 of 2000

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Surojit Bhattacharjee, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Kalipada Das and others

Respondent: Jessore Municipality and others

Subject: Evidence Act

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

20.03.2018

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Kalipada Das and others

. . . Plaintiff-Respondent-Petitioner

-Versus-

Jessore Municipality and others

. . . Plaintiff-Appellant-Opposite Parties.

Evidence Act (I of 1872)     

Section 115 (1)

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

The plaintiffs to the suit since 1914 A.D. possessing the suit property from the time of their predecessor and their possession in the suit land is uninterrupted, which can easily be treated open and adverse within the knowledge of everybody including Jessore Municipality. From the evidence it also appears that Jessore Municipality after accepting Poura Tax from the Plaintiffs, admittedly granted poura tax receipts. Therefore, obviously; the defendant-opposite party Jessore Municipality is barred under law in challenging the possession of the plaintiffs and principle of estoppel has imposed a hurdle in claiming that the property is being possessed by them or anybody except the plaintiffs. . . . (33)

Code of Civil Procedure (V of 1908)

Order XLI, Rule 31

Limitation Act (IX of 1908)

Articles 142 and 144

Consulting the impugned judgment and decree in comparison with the evidence on records and other connected papers I find that the learned Appellate Court at the time of disposal of the appeal failed to appreciate the actual proposition of law with regard to adverse possession and also failed to assess the evidence on records in its true perspective and also failed to give any conclusive findings and decision and without rebutting the findings of the trial court adverting evidence on records reversed the judgment and decree of the trial court illegally on the face of the records and as such under the ambit of Order XLI, rule 31 of the Code of Civil Procedure the Appellate Court not disposed of the appeal lawfully. Apart from this, it appears that there has been non-consideration of material facts resulting in an error in the decision occasioning failure of justice in deciding the merit of the appeal.                                                           . . .(35)

44 DLR (AD) 100; 42 DLR (AD) 152; 35 DLR (AD) 216; 28 DLR (AD) 61; 64 DLR (AD) 127 and  VIII BLD (1988) 497 ref.

Mr. Surojit Bhattacharjee, Advocate

---- For the petitioners

Mr. Sheikh Atiar Rahman, Advocate

     ---For the Opposite Parties.

JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the opposite party No.1 to show cause as to why the impugned judgment and decree dated 07.09.2000 passed by the learned Sub-ordinate Judge, 1st Court, Jessore in Title Appeal No.30 of 1996 reversing the judgment and decree dated 31.01.1996 passed by the learned Senior Assistant Judge, Jessore Sadar, Jessore in Title Suit No.32 of 1985 in decreeing the suit 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 facts giving rise for disposal of this Civil Revision in a nutshell can be stated thus, the present petitioners as plaintiffs instituted the original Title Suit No.32 of 1985 in the Court of learned Senior Assistant Judge, Sadar, Jessore for a decree of establishment of title and confirmation of possession contending inter alia that the suit land along with other lands originally belonged to one Ramchandra Das under the land lordship of one Beni Madhab Mishra. Subsequently; for arrear of rent the landlord instituted a rent suit against the tenant Ram Chandra Das being Rent Suit No.670 of 1911 in the 3rd Court of the then Munsif, Jessore, which was decreed and in Decree Execution Case No.785 of 1914 one Nistarini Dasi auction purchased the land on 20.09.1914 and the auction-purchaser got delivery of possession through court. At the time of Cadastral Survey settlement, the said joma was split up into three plots being No.301, 302 and 302/329, on which the auction-purchaser Nistarini Dasi erected her homestead in one compact block and started to reside therein. At the time of record, the C.S.  plot No.301 and 302 were correctly recorded in the name of Nistarini Dasi but the disputed C.S. plot No.302/329 was wrongly recorded in the name of defendant No.1, Jessore Municipality. Subsequently, during S.A. record of right the said plot again was also wrongly recorded in the name of defendant No.1. Nistarini Dasi died subsequently leaving behind her only daughter Horidasi Dashya. Horidasi died leaving behind the plaintiffs as son and grandsons. The plaintiffs since their predecessor continuing their possession in the suit property which is the dwelling hut of them since 1914 A.D. which is more than 70 (seventy) years by asserting hostile title against the defendants and others and in this way the plaintiffs have acquired their valid right, title, interest and possession by way of adverse possession for more than 70 years in the suit land. The defendants on the basis of wrong record denied the title of the plaintiffs on 26.11.1982, which constrained the plaintiffs to institute the original suit.

3.             The contrary case of the contesting defendant No.1, Jessore Municipality in short is thus that the suit land belonged to Jessore Municipality and the C.S. and S.A. khatian of the suit land have been correctly prepared in the name of the defendant No.1. The further case of the defendant is such that the plaintiffs have no title and possession to the suit land, but on the basis of false allegation filed the suit.

4.             The learned trial Judge after taking evidence from the sides of the respective parties decreed the suit on contest by the judgment and decree dated 31.01.1996 and 07.02.1996 respectively.

5.             Being aggrieved the defendant No.1 preferred an appeal being Title Appeal No.30 of 1996 in the Court of learned District Judge, Jessore which were transmitted to the 1st Court of learned Sub-ordinate Judge, Jessore for hearing and disposal and the learned Appellate Court hearing the appeal by the impugned judgment and decree dated 07.09.2000 allowed the appeal and reversed the judgment and decree passed by the trial court.

6.             Being aggrieved by and dissatisfied with the impugned judgment and decree the plaintiff-respondent-petitioners have 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. Surojit Bhattacharjee, the learned Advocate appeared on behalf of the petitioners while Mr. Sheikh Atiar Rahman, the learned Advocate appeared on behalf of the defendant-opposite party No.1.

8.             The learned Advocate appearing on behalf of the petitioners submits that the learned Appellate Court during disposal of the appeal committed gross illegality and infirmity. The learned Advocate further submits that during disposal of the appeal the learned Sub-ordinate Judge, 1st Court, Jessore totally failed to assess and consider the evidence on record in its true perspective and also failed to appreciate the actual proposition of law resulting in an error in the decision occasioning failure of justice. The learned Advocate also submits that on an application of the plaintiffs the trial court allowed the same for holding local investigation for ascertaining the suit land and the learned trail court appointed one Mr. Gazi Abul Abbas a learned survey knowing lawyer for holding local investigation. The learned Advocate Commissioner accordingly under the direction given upon him on the basis of a writ went to the locality and after thorough investigation submitted his report and this report supports the contention of the plaintiffs in respect of the identity and specification of the suit property which is still prevailing, but that material evidence was also ignored by the learned Appellate Court illegally. The learned Advocate submits that, the positive contention of the plaintiffs is such that the plaintiffs are possessing the suit property since 1914 A.D. openly and adversely within the knowledge of everybody including Jessore Municipality in whose name the C.S. and S.A. khatian were prepared and on the basis of which the defendant No.1, Jessore Municipality denied the title of the plaintiffs. The learned Advocate argued that the witnesses adduced from the side of the plaintiffs successfully proved that the plaintiffs are possessing the suit property for more than 70 years which is their homestead and they are residing therein and on the contrary, the defendants have hopelessly failed to falsify the case of the plaintiffs by any tangible evidence which is also not considered properly by the learned Appellate Court and the Appellate Court without rebutting the findings of the trial court, adverting evidence on records reversed the judgment and decree passed by the learned Trial Court, which is apparently illegal in the eye of law. The plaintiff’s homestead is situated on the disputed plot No.302/329 along with the undisputed plot No.301 and 302 which is the integral part of foundation of the pukka building and that building is being used by the plaintiffs since their predecessor as of their homestead continuously for more than 70 (seventy) years and the learned Appellate Court was totally misconceived in grasping the actual facts and evidence of the case and the relevant proposition of law and thereby arrived at an erroneous decision at the time of disposal of the appeal on merit. The learned Advocate lastly submits that the defendant-opposite party Jessore Municipality admitting the plaintiff tenancy under the Government and their possession therein after receiving municipality tax granted receipts and that very fact is admitted by the defendant’s witnesses and all these papers has been marked as Exhibit-5 series and as such the defendant-opposite party No. 01, Jessore Municipality is barred by the law of estoppel to deny the claim of the plaintiff’s which is also not considered by the learned Appellate Court and as such the impugned judgment and decree is liable to be interfered with. The learned Advocate in support of his contention referred some decisions reported in 44 DLR(AD) 100, 42 DLR (AD) 152, 35 DLR (AD) 216, 28 DLR (AD) 61, 64 DLR (AD) 127 and VIII BLD (1988) 497.

9.             As against the aforesaid submission of the learned Advocate for the petitioners the learned Advocate appearing on behalf of the opposite party No.1 opposing the Rule submits that the learned Appellate Court during disposal of the appeal committed no illegality or irregularity. The learned Advocate further submits that admittedly the C.S. and S.A. record of right has been prepared in the name of defendant-opposite party No.1, Jessore Municipality, which has got a presumptive value of correctness. The learned Advocate also submits that the predecessor of the plaintiffs, Nistarini Dasi did not reside in the suit homestead which is in C. S. plot No.302/329 and the homestead of Nistarini and after her death the plaintiffs, is situated in the adjacent plots of suit plot No.302/329, but the plaintiffs only to grab the property of Jessore Municipality on false allegation filed the suit. The learned Advocate further submits that the Advocate Commissioner according to the law of commission did not act and without holding local investigation properly submitted has report which was not acceptable in the eye of law. The learned Advocate also submits that the land of ‘boynama’ in the name of Nistarini is not identical with the suit land, but the learned Advocate Commissioner without proper investigation submitted his report supporting the case of the plaintiffs and as such the learned Appellate Court rightly disbelieved and discarded the report of the commissioner in the impugned judgment and decree. The learned Advocate argued that, the trial court at the time of decreeing the suit without considering the evidence on records properly, decided the merit of the suit in favour of the plaintiffs and for that reason the learned Appellate Court during disposal of the appeal reversed the findings of the trial court relying upon the evidence led from the sides of the respective parties inasmuch as the plaintiffs to the suit have failed to prove their case by sufficient evidence. The learned Advocate lastly submits that, there is no misreading or non-reading of evidence and 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.         In order to appreciate the arguments advanced from the sides  of the learned counsels for the respective parties I have perused the original plaint along with the subsequent amendment of the plaint, the written statement of the contesting defendant No.1, the evidence adduced from the sides of the respective parties and all other connected papers including the case records.

11.         On perusal of the papers it transpires that admittedly the suit property is situated within Jessore Municipality area appertaining to Mouza “Ghop” under Kotwali police station and the original landlord was one Beni Madhob Mishra under whom Ram Chandra Das was a tenant. It is the positive contention of the plaintiffs that the original landlord for arrears of rent started a rent suit against the tenant being Rent Suit No.670 of 1911 in the 3rd Court of the then Munsif, Jessore. That suit was decreed and in Decree Execution Case No.785 of 1914 in open auction the predecessor-in-interest of the plaintiffs namely  Nistarini Dasi auction purchased the suit land on 20.09.1914. The possession was delivered in favour of the purchaser through Court. It is also the pleading’s case of the plaintiffs that during C.S. operation in 3 plots being No.301, 302 and 302/329 the suit land along with its contiguous land which is non-suited was recorded. The land of plot No.301 and 302 was correctly recorded in the name of Nistarini, but the other plot which is the suit plot No.302/329 has been recorded n the name of Jessore Municipality wrongly, but the fact remains that in one compact block the auction purchaser Nistarini Dasi after purchasing the suit land used to possess the suit property after erecting her dwelling huts.

12.         Having gone through the case records I find that the contesting defendant No.1 Jessore Municipality has no claim under plot No.301 and 302 and they do claim the plot No.302/329 as of their recorded property. They also claimed their possession therein while the plaintiffs are claiming that property as of their dwelling huts since 1914 A.D. It was the positive case of the plaintiffs that by way of adverse possession openly and adversely within the knowledge of everybody including the defendant-opposite party No.1 they are residing in the suit property which is the integral part of non-suited plot No. 301 and 302 with their family members for more than 70(seventy) years.

13.         I have come across from the respective cases of the parties that it was contended by the plaintiffs that in the year 1971 during the war of liberation they were compelled to leave this country and at that time they have lost some valuable title papers in respect of rent suit and Decree Execution Case No.785 of 1914. After the independence of ‘Bangladesh’ returning back to their homestead they have obtained the ‘boynama’ of the said auction which has been marked as Exhibit-2. The C.S. record of right has also been produced from the side of the plaintiffs which has been marked as Exhibit-1 and the landlord’s ‘dakhilas’ in favour of Nistarini Dasi are Exhibit-3 series. The holding tax receipts in favour of the plaintiffs from the defendant-opposite party No.1 were also produced from the side of the plaintiffs marked as Exhibit-5 series and the learned Advocate Commissioner’s report has been marked as Exhibit-‘A’.

14.         I have also come across from the connected papers including the order-sheets that without objection the Advocate Commissioner’s report has been accepted by the learned trial court vide Order No.56 dated 12.05.1990. Against the acceptance of the Advocate Commissioner’s report the defendants remained silent and the learned trial court in his observation and findings holding the view that the suit plot No.302/329 is a integral part of remaining plot No.301 & 302 which is supported by Exhibit ‘A’, passed his judgment and decree. In this regard, I find that save and except the C.S. and S.A. khatians from the side of the contesting defendant there is no scrap of paper to substantiate the case of the present petitioner and there is nothing to falsify the case of the plaintiffs. Apart from this, the evidence as adduced from the sides of the respective parties are as follows:

15.         P.W.1 Anil Kumar Das is the son of Original plaintiff (now dead) Hori Dasi Dashya. This witness in his testimony testified in support of their pleading and corroborated the case of the plaintiffs. P.W.1 in his deposition categorically testified that at the joma of    Tk. 5/- (five) under the landlordship of Beni Madhob Mishra, Ram Chandra was tenant. Subsequently, for arrears of rent a Rent Suit was started by the landlord and that suit was decreed and in the year 1914 A.D. in a Decree Execution Case Nistarini Dasi auction purchased the suit property and obtained ‘boynama’. The possession was delivered in her favour and she erected her homestead and started to reside therein on payment of rent. P.W.1 further testified that the plot No. 301 & 302 are old plots and those were correctly recorded in the name of Nistarini, but the suit plot No.302/329 has been wrongly recorded in the name of Jessore Municipality. P.W.1 during his testimony testified at a stage that in the month of Agrahayon, some Municipality Officials denied their title to the suit property and thereafter, in the year 1983 they have filed a suit which was withdrawn by them due to formal defect and thereafter, serving notice to Jessore Municipality according to law, they have filed the original Title Suit No.32 of 1985. In this context, it appears that this P.W.01 under the concerned Pourashava Ordinance a notice with A/D under section 152 which was served upon the Pourashava, has proved and these papers has been marked as Exhibit-4 series.

16.         During cross-examination P.W.1 categorically testified at a stage that prior to 25/26 years a pukka building was constructed in the suit property which is being used by them as of their homestead, and Nistarini Dasi used to reside in the same property and his (P.W.1) mother on the same land constructed a new building, and at the time of Nistarini, there were 04 huts in the suit property and when those became inhabitable his mother erected a new building consists of same number of huts in the suit property. In a reply to a question from the side of the defendant, P.W.1 testified that Ram Chandra was the husband of Nistarini who had no son.

17.         P.W.2 Jaldhar Kobiraj is a possession witness of the plaintiffs, who is an inhabitant of the suit locality. This witness in his deposition testified that he is a man of 96 years of age and he knows the mother of the plaintiff Nistarini and father Ram Chandra. In the suit property Ramchandra had possession and after his death Nistarini possessed and at present the plaintiffs are possessing the suit land. P.W.2 also testified that from the tenure of Pakistan there is a pukka building in the suit property and the Pourashava do not possess the suit land. During cross-examination P.W.2 testified that the area of the suit land is 12 decimals and at the time of construction of the building he(P.W.2) was a man of 50 years and he has seen personally the construction work of the building in the suit property.

18.         P.W.3 Sushil Kumar is a man of 60(sixty) years of age. This witness also deposed corroborating the possession of the plaintiffs. In his deposition he has testified specifically that he knows the suit land and the plaintiffs and the suit property is being possessed by the plaintiffs as of their homestead and in the suit property there is a one storied building. This witness in his testimony also testified at a stage that in the year 1971 the house of the plaintiffs was looted.

19.         During cross-examination in a reply to a question from the side of the defendant, P.W.3 categorically replied that the suit land consists of 12 decimals of land and the non-suited land consists of 04 decimals and there is no demarcation or division in between the suit land and non-suited land.

20.         P.W.4 Amzad Ali, who is a construction carpenter in his deposition, deposed that for the last 30/32 years he is working as a ‘Rajmistry’ and prior to 26/27 years he constructed a building house in the suit property according to a plan, which was duly passed by the Pourashava and lying with the plaintiffs.

21.         P.W.5 Ansar Ali is a helper of ‘Rajmistry’ Amzad Ali. In his testimony he has corroborated P.W.4.

22.         P.W.6 Md. Abul Hossain, is a clerk of a government pleader for the last 30 years. In his testimony he testified that, he knows the suit land and the plaintiffs and the plaintiffs are possessing the suit land as of their homestead and they have erected a pukka building prior to 26/27 years and the Pourashava do not possess the suit property.

23.         Vis-à-vis; from the side of the defendant, Jessore Municipality one witness was examined who is D.W.1 Md. Abu Bakkar.

24.         D.W.1 in his testimony testified that he is a Jessore Municipality Official and he is deposing on behalf of Pourashava viz. Municipality of Jessore. D.W.1 in his examination-in-chief testified that the suit property is possessed by Pourashava and the ‘boynama’ of the plaintiffs is collusive and forged.

25.         During cross-examination from the side of the plaintiffs, D.W.1 frankly conceded at a stage that he has no knowledge about the suit land prior to record and he knows the suit and since 1964 and he has no personal knowledge as to whether there was any rent suit for arrears of rent and whether in the year 1914 there was any execution case in respect of the suit property. D.W.1 testified in his cross-examination categorically that he has no personal knowledge about the ‘boynama’. This witness has admitted that these tax receipts were given by Jessore Pourashava and he does not know as to whether Nistarini had dwelling hut in the suit land.

26.         Here in this case, on meticulous consideration of the case records I find that for the 2nd time after the order of remand by the Appellate Court during disposal of the Title Appeal No.37 of 1991 by the learned Additional District Judge, Jessore pursuant to the judgment and decree dated 15.04.1995 for holding fresh trial after framing a separate issue as to whether the plaintiffs acquired any title on the basis of adverse possession, the learned trial court again examined witnesses from the sides of the respective parties after framing a separate issue on adverse possession. At this time, P.W.1 Anil Kumar Das in his testimony testified in the same way that he is the son of Hori Dasi and in the year 1914 Nistarini Dasi obtained possession of the suit property and Nistarini died in the suit land and at her death the mother of this witness namely Hori Dasi, used to reside in the same homestead and at the demise of Hori Dasi, the present plaintiffs are continuing their possession in the suit homestead and thus the plaintiffs since 1914 possessing the suit property within the knowledge of the defendants all and in all the plaintiffs are possessing the suit property for more than 80/81 years and in the suit property they have got their homestead, in where; they use to reside. P.W.1 also testified that in respect of the suit property they have paid Poura tax and obtained the tax receipts and he is submitting 15(fifteen) Jossere Municipality tax receipts.

27.         At the 2nd time, another witness was adduced from the side of the plaintiffs, who is P.W.7 Sheikh Poymol, who is a man of 91 years of age. This witness in his testimony as a new witness testified in support of the continuous possession of the plaintiffs from the time of his(P.W.7) 14 years of age. He has corroborated the case of the plaintiff’s according to their pleading in toto and categorically testified that in the suit property Pourashava has no possession.

28.         During cross-examination P.W.7 testified at a stage that the suit land consists of 12 decimals in which the plaintiffs have homestead.

29.         For the 2nd time D.W.1 Md. Abu Bakkar during his deposition testified at a stage that he is tadbirker on behaf of Jessore Municipality and serving there as an employee and deposing on behalf of Pourashava. In the examination-in-chief D.W.1 Md. Abu Bakkar testified that the plaintiffs do not possess the suit property and Pourashava is possessing the same and the plaintiffs have homestead beside the suit land.

30.         During cross-examination D.W.1 admitted that there was a survey commission in respect of the suit property through court and he(D.W.1) in fact does not know the name of the person who possess on behalf of Pourashava but he knows that a peon of Pourashava use to possess and they will not produce that peon to depose on behalf of Pourashava. In the cross-examination D.W.1 testified at a stage that they have not filed any paper showing the possession of Pourashava by a peon and this witness has admitted that the Poura tax receipts in favour of the plaintiffs were granted by the Pourashava in respect of the suit property.

31.         Lastly, the learned trial court has examined the concern Advocate Commissioner Gazi Abul Abbas and this witness in support of his commission work specifically testified before the court and categorically said that according to the writ of the court he did the commission work and submitted the report on 18.02.1986 which has been marked as Exhibit-‘ka’. During cross-examination the learned Advocate Commissioner denied that being biased he submitted the report.

32.         Scrutinizing the examination-in-chief and the cross-examination of the witnesses I have the reason to inclined such a view that, despite the plaintiff’s witnesses have been thoroughly cross-examined from the side of the defendant-opposite party, but none of them appears to have been discredited. Their evidence is sound and cogent. Except some minor discrepancies there is no material contradiction or omission from the side of the plaintiff’s witnesses by which it can be held that they deposed falsely or they can be disbelieved but on the other hand; the defendant’s witness, D.W.1 in his examination-in-chief although tried to establish the case of the defendant-opposite party, but from the trend of his cross-examination it is evident to note that this witness is not competent and practically knows nothing about the factual aspect of the case and his evidence cannot be treated as credible and cogent. 

33.         Apart from this, from the evidence on records it is apparent that the plaintiffs to the suit since 1914 A.D. possessing the suit property from the time of their predecessor and their possession in the suit land is uninterrupted, which can easily be treated open and adverse within the knowledge of everybody including Jessore Municipality. From the evidence it also appears that Jessore Municipality after accepting Poura tax from the plaintiffs, admittedly granted poura tax receipts which have been marked as Exhibit-5 series. Therefore, obviously; the defendant-opposite party Jessore Municipality is barred under law in challenging the possession of the plaintiffs and the principle of estoppel has imposed a hurdle in claiming that the property is being possessed by them or anybody except the plaintiffs.

34.         The learned trial court during disposal of the original suit by the judgment and decree dated 31.01.1996 clearly held adverting evidence therein that by way of adverse possession for more than 50(fifty) years the plaintiffs have acquired adverse title and interest in the suit property. I also find that the learned trial court rightly relied upon the decision of the Hon’ble Appellate Division reported in 36 DLR(AD)261 in the case of Abdul Kader and others –vs.- Noor Mohammad and others. It is also rightly held by the learned trial court that the learned Advocate Commissioner during his commission work relayed the boundaries of the suit land with the CS plot No. 301, 302 & 302/329 and the ‘boynama’ which is in respect of auction purchase of the suit property. It is decided by the learned Advocate Commissioner that the pukka building is situated within the suit property which is more than 25 years and this report has been accepted by the court and marked as Exhibit-‘ka’ and against that acceptance, the defendants did not take any legal step or measure.

35.         Consulting the impugned judgment and decree in comparison with the evidence on records and other connected papers I find that the learned Appellate Court at the time of disposal of the appeal failed to appreciate the actual proposition of law with regard to adverse possession and also failed to assess the evidence on records in its true perspective and also failed to give any conclusive findings and decision and without rebutting the findings of the trial court adverting evidence on records reversed the judgment and decree of the trial court illegally on the face of the records and as such under the ambit of Order XLI, rule 31 of the Code of Civil Procedure the Appellate Court not disposed of the appeal lawfully. Apart from this, it appears that there has been non-consideration of material facts resulting in an error in the decision occasioning failure of justice in deciding the merit of the appeal.

36.         In view of the facts and circumstances of the case it is noticed that the case laws referred to from the side of the learned Advocate for the petitioners have got every nexus and I have the reason to hold such a view that these decisions have much application in this case.

37.         Having regard to the facts, circumstances and the discussions referred to above I am constrained to hold such a view that the Rule has got much merit to succeed.

38.         In the result, the Rule is made absolute. The impugned judgment and decree dated 07.09.2000 passed by the learned Sub-ordinate Judge, 1st Court, Jessore in Title Appeal No.30 of 1996 reversing the judgment and decree dated 31.01.1996 passed by the learned Senior Assistant Judge, Jessore Sadar, Jessore in Title Suit No.32 of 1985 is hereby set aside.

39.         However, there will be no order as to costs.

40.         Communicate the judgment and order at once and send back to the Lower Court’s Records immediately.

         Ed.  



Civil Revision No. 5274 of 2000