Case No: First Appeal No. 213 of 2009 with Civil Rule No. 520 (F)/2009
Judge: Jahangir Hossain,
Court: High Court Division,,
Advocate: Mr. Afsaruddin Ahmed Khan,Mr. Monzoo-ul-Karim Kazal,Mr. Abdul Haque,,
Citation: 2016 (2) LNJ 57
Case Year: 2016
Appellant: Md. Abul Hossain
Respondent: Farid Ahmed and others
Subject: Civil Law,
Delivery Date: 2010-07-12
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
|Nozrul Islam Chowdhury, J
Jahangir Hossain, J.
|Md. Abul Hossain
. . . Appellant
Farid Ahmed and others
. . . Respondents
Evidence Act (I of 1872)
Bengal Tenancy Act, 1885 (VIII of 1885)
It is apparent from the said finding, made by the trial Court that the defendant respondents without challenging the record of right of Momiruddin Munshi, the predecessor of the plaintiff, could not Mutate their name in accordance with law. This assertion of the trial Court goes in favour of the plaintiff-appellant at this stage whereas he dismissed the suit without stating reason therein and thereby not sustainable by this Court. If so required they (defendants) ought to have corrected the record of right. In the light of this proposition of law, it was held in the case of Abdul Hafez and another Vs. Lal Meah & others reported in 38 D.L.R. (1986) 327 and Akrab Ali and others Vs. Zahiruddin Kari and others reported in 30 D.L.R. (SC) (1978) 81 that according to section 103 B(5) of the Bengal Tenancy Act every entry in the record of right finally published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect. . . . (22)
Abdul Hafez and another Vs. Lal Meah and others, 38 D.L.R. (1986) 327 and Akrab Ali and others Vs. Zahiruddin Kari and others, 30 D.L.R. (SC) (1978) 81 ref.
First Appeal No. 213 of 2009 with Civil Rule No. 520 (F)/2009
Mr. Afsaruddin Ahmed Khan with
Mr. Monzoo-ul-Karim Kazal
. . . For the Appellant.
Mr. Abdul Haque
…For the Respondent.
Jahangir Hossain, J:
- The appellant as plaintiff instituted Title suit No. 196 of 2007 before the Joint District Judge, Additional Court, Gazipur, impleading the respondents as defendants seeking a decree for declaration of title after nullifying the registered kabala vide No. 18324 dated 5.7.2007 being forged, fake, frivolous and fabricated and not binding upon the plaintiff.
- The suit was ultimately dismissed on contest by the learned Joint District Judge by his Judgment and decree dated 16.06.2003 passed in Title Suit No. 196 of 2007. Against which the plaintiff as appellant the instant appeal.
- The facts in a nutshell giving rise to this appellant are that the suit land described in the schedule of the plaint along with other land appertaining C.S Khatian No. 101 comprising an area of 13.41 acres of land originally belonged to Gopal Mondal and during last settlement and survey operation, the record of right of the said land was prepared in his name; Gopal Mondal having been in possession and enjoyment therefore transferred the same by Heba-bil-Ewaz being deed No. 5018 dated 16.11.1918 in favour of his three grand sons, namely Sheikh Naimuddin, Sheikh Kalomuddin and Kafiluddin thereafter, Sheikh Naimuddin having been inducted into possesseion and enjoyment of his share, he transferred 0.53 acres of land by a registered kabala being No. 10479 dated 20.06.53 in favour of one Momiruddin Munshi. Under the facts and circumstances as stated above, the name of Momiruddin Munshi along with other co-sharers were correctly recorded in the S.A Khatian No. 124 and also in R.S Khatian No. 102, while possessing and enjoying of the said land, Momiruddin Munshi died leaving behind his wife Sonaban Bibi, 2 sons namely Md. Helal Uddin and Md. Kafiluddin and 4(four) daughters namely Samorthaban, Mollika, Joynagan nessa and Malikjan ( Mani ) as his heirs; thereafter, Kafiluddin died leaving behind his wife-Sajeda Begum and 2 sons namely Md. Sajjad Hossain and Md. Sabbir Hossain who Having been in possession and enjoyment thereof along with other land, transferred. 44 acres of land in favour of one Tofazzel Hossain by a registered kabala being No.5913 dated 17.3.2005; said Tafazzel Hossain having been in possession and enjoyment the said land till 1412 B.S; thereafter, he transferred .30 acres of land in favour of Md. Abul Hossain, the plaintiff of the suit by a registered kabala being No. 13018 dated 4.6.2005 dated 4.6.2005 and handed over the possession in favour of the plaintiff who having been inducted into possession of the suit land upon purchase as mentioned above, mutated his name in the record of right through Mutation case No. 18470/2005-06 Government having obtained receipts till 1414 B.S ; the plaintiff has further stated in his plaint that around the suit land he constructed pillars on the northern, eastern and western side by placing barbed wire fencing and boundary wall on southern side and stored sand thereon; thereafter, he built a semi pacca tin shed house over the suit land, the aforesaid facts were very much known to the local people. On 7.7.2007 defendant nos .1-3 came to the suit land demanding that they are the owners of the suit same, the plaintiff through searching found that a kabala being No. 18324 dated 5.7.2007 was registered in the Sub-Register Office of Gazipur; having been obtained a certified copy of said registered deed by the plaintiff on 18.7.2007, has come to learn that defendant Nos. 4-10 being vendors executed deed on 5.7.2007 in favour of the defendant Nos.1-3 who in Collusion with each other created a forged, fake and frivolous deed; the defendant Nos. 1-3 had never been in possession, nor they had any right and title over the suit land; and as a matter of fact the said deed was never acted- upon rather it was a mere piece of paper transaction only, therefore, the plaintiff brought the instant suit as aforesaid.
- The defendant Nos.1-3 entered appearance upon filing a written statement denying all material allegations made in the plaint contending inter alia that the land measuring 0.1039 acres if land appertaining to C.S Khatian No. 101 and 0.336 acres of land appertaining to C.S Khatian No. 15 under the same Mouza having been in possession and enjoyment thereof by Gopal Mondal who transferred the aforesaid entire land in favour of Sheikh Naimuddin, Sheikh Kalom uddin and Sheikh Kafiluddin by a Heba-bil-Ewaz No. 5018 dated 16.11.1918; thereafter, Sheikh Kalomuddin died leaving behind his only daughter named Halimunnessa who inherited her father`s property appertaining C.S Khatian No. 101 corresponding to plot No. 298 and having been in possession and enjoyment thereof along with other land, sold 0.68 acres of land to Ahid Ali and Sonaullah by registered kabala being No.9240 dated 2.10.1967 and therefore their names were correctly recorded along with other land in S.A Khatian No. 124; Said Ahid Ali and Sonaullah having been inducted into possesson and enjoyment thereof transferred 34acres of land by a registered kabala dated 21.4.73 in favour of Hafiz uddin, son of Sheikh Naimuddin; upon purchase and inheritance Hafizuddin having been inducted into possession and enjoyment thereof sold 0.24 acres of land from plot No. 298 and .04 acres of land from former plot No. 348 in total 0.28 acres of land in favour of one Md. Amzad Khan by a registered deed No. 1083 dated 18.2.1977 followed by handing over the possession of the land to him; upon purchase Amzad Khan having been possession thereof transferred the same on 30.6.80 in favour of Ms. Syed Rabeya, Syed Rezia Khatun and Syed Ibnul Hasan by three registered deed Nos. 8581,8582, and 8583 Respectively and after mutating their names in respect of suit land while having been in peaceful possession and enjoyment thereof one of the said in purchasers named Syeda Hosneara, Syeda Hazara khatun, Syeda Jahanara Khatun, Syeda Johura Khatun, Syeda Hasin Khatun and only son Syed Mahmudul Hasan; thereafter, Said Rabeya Khatun along with the heirs of syed ibnul hasan by virtue of being owners of the land transferred the same by a registered deed no. 18324 dated 05.07.2007 in favour of the defendant Nos. 1-3 namely Farid Ahmaed, Md anisur Rahman and Ms. Shahnaz Parveen Who after getting peaceful possession over the suit land stored clay (earth) thereon and constructed wall and fencing of barbed wire and built a Tin shed house over the suit land meanwhile electric line was connected and gas line was under process; the plaintiff has no right and title over an inch of suit land; the plaintiff brought the instant suit by making false statements which is liable to be dismissed.
- Eventually, the said suit was taken up for hearing by the learned Joint District Judge, Additional Court, Gazipur. During-g trial 4 issues were framed b te trial Court and the plaintiff examined as many as 4 witnesses including himself in support of his case while defendants examined 3 witnesses in the suit; after conclusion of trial the learned Joint District Judge, Additional Court, Gazipur dismissed the suit by Judgment and decree date 16.06.2003 in Title Suit No, 196 of 2007 against which the plaintiff as appellant preferred the instant appeal.
- Mr. afsarudiin Ahmed khan, with Mr. Monjurul Karim kazal, the learned Advocate appellant has taken us through the relevant materials for the purpose of disposal of appeal including plaint =, written statement, deposition of witnesses, Advocate commission fact by both parties that the suit land in question along with other land Originally belonged to Gopal Mondol who transferred the entire property to his three grand sons by a Heba-bil-Ewaz and the plaintiff purchased 0.30 acres of land the actual R.S recorded owners who are also subsequent successors of the Original owner named Gopal Monndol. He further submits that during pendency of the trial an Advocate commission was held on 13.09.2007 as per courts order wherefrom it transpires that a semi pacca house, boundary wall had been constructed 5/6 months before holding commission, on the country, respondents being defendants stated in their written statement that they purchased the suit land on 05.07.2007 which proves that the construction of the suit land by the defendants. The learned Advocate further submitted for the appellant that the predecessor of the plaintiff named P.W.4 Tofazzal Hossain purchased the suit land from the heirs of Moniruddin Munshi in whose favour the R.S record Stands and he paid revenue to the government in respect of suit land till 1412 B.S.
- Mr. Abdul Haque the learned Advocate appearing for the respondents submits that the suit brought by the appellant as plaintiff, in no way , has been proved by adducing evidence on record and the plaintiff has failed to prove his case as to the possession and enjoyment thereof. He further submits that the weakness of the defendant has no ground for grating decree in favour of the plaintiff in the suit.
- Having heard the learned advocates from both sides, we therefore, feel it proper to assess and evaluate that the appellant as plaintiff has examined 4 witnesses including himself in the suit of whom plaintiff as P.W.1 deposed before the trial Court to the effect that Gopal Mondal was the Original C.S recorded owner of the suit land and he transferred the entire property by deed No, 5018 dated 16.11.1918 in favour of his three grand sons namely Kalimuddin, Salimuddin and Naimuddin and the same were correctly recorded in their names upon preparing S.A Khatian No. 124 Thereafter, Naimuddin sold 0.53 acres of land by a res of land by a registered kabala being No. 10479 (as amended by this cooourt on prayer )in favour of Momiiruddin munshi and the record of right was prepared in his name by S.A khatian and subsequently R.S Khatian. Said Momiruddin Munshi died Leaving behind his wife, two sons and four daughters while kafiluddin die. Leaving behind his wife and two sons. Thereafter, the heirs of Momiruddin Munshi transferred 0.44 ½ acres of land by a kabala No. 5913 dated 17.03.2005 to one Tofazzal Hossain who after Mutating the same in his name, paid rent to the Government. From the said land, Tofazzal Hossain transferred 0.30 acres of land by a registers=d kabala being No. 13018 dated 04.06.2005 in favour of the plaintiff who also paid revenue to the Government after mutating the same in his favour P.W.1 deposed further that he having been in possession and enjoyment thereof, constructed boundary wall and built a tin shed house over the suit land,. He further testified that on 07.07.2007 defendant Nos. 1-3 came to the suit land demanding ownership of the same. Thereafter, he (P.W.1) collected certified copy of the deed No. 18324 dated 05.07.2007 ehicj has been marked as exhibit 1,P.W.1 further Produced certificate copies of deed No 5018 dated 16.11.1918 (admitted by both parties), marked as exhibit-2, R.S. Khatian No. 102 market as exhibit-3, deed No.5913 dated 17.03.2005 marked as exhibit-4 (corrected by this Court’s order on prayer) deed No. 13018 dated 04.06.2005 market as exhibit- 4(ka) (corrected by this Court on prayer ), mutation Khatian No. 18470/2005/2006 market as exhibit-5 and D.C.R. and khatian market as exhibit 5 series. The plaintiff as P.W.1 denied the place of the defendants adding that the defendant has no right, title and interest over the suit land.
- Having gone through the cross-examination portion of PW.1 we find no discrepancy of his testimony with the deposition as well as his plaint.
- Md. Mahabubul Alom, an Advocate as P.W.2 deposed to the effect that he served notices on 05.09.2007 upon the learned Advocates of both parties before holding the commission and on 13.09.2007 the commission was held in presence of the both parties and he submitted the report on 26.09.2007. He has denied that he did not give false report and the same was not beyond writ, issued by the court. In his cross examination he disclosed that a tin shed house and the boundary wall had been built up over the suit land 5/6 months before holding the commission.
- From the evidence of P.W.2 and his commission report it reveals that the neighbours disclosed in presence of persons of the commission that the tin shed house and boundary wall were built befour the transferring the land in favour of the defendants as alleged.
- Md. Abul Kashem as P.W.3 deposed to the effect that the plaintiff, defendant and the suit land are known to him. He has a land beside the suit land. The plaintiff has been possessing and enjoying the suit land. The plaintiff has a house thereon and fencing of barbed wire around the suit land, and the plaintiff has also other land by the northern-southern side of the suit land. This Witness however categorically stated about the actual position of the suit land as claimed by the plaintiff. This testimony of P.W.3 has supported the evidence of P.W.1 as well as plaint brought by plaintiff.
- Md Mofazzal Hossain as P.W.4 deposed that he knows plaintiff, defendants and the suit land and he having been inducted into the possession and enjoyment thereof, sold the suit land in favor of the plaintiff and handed over the possession too and there is a fencing of barbed wire around the suit land which was filled up by clay/earth and the plaintiff has been possessing and enjoying the suit land since its transfer by him. During cross examination this witness admitted that he did not go further to the suit land after sale which he sold two years before. He also denied suggestion that he sold the suit land though he was not in possession of the same and the possession of the suit land was not handed over to the plaintiff by him.
- From a close scrutiny of evidence of this witness we find no deviation between the deposition and testimony of cross-examination as disclosed by this witness. This witness being the predecessor of the plaintiff is a very important witness in this case. His testimony corroborated the evidence of other witness regarding the possession and ownership of the suit land as alleged by the plaintiff-P.W.1.
- The respondents as defendants examined as many as 3 witnesses in the suit whom defendant-Farid Ahmed as D.W.1 deposed before the trail Court stating that he along with 2 other defendants purchased the land and he himself and on behalf of defendant Nos. 2-3 gives evidence in the Court. The suit land appertains to C.S khatian 101 S.A. 124, R.S 102 and C.S. 15 khatians are not known to him. Gopal Mondal was the original owner of the land appertaining to C.S khatian No. 101 and C.S khatian No. 15, certified copies of the said khatians have been marked as exhibit-ka series. Gopal Mondal being the owner of the land of both two khatians, transferred the entire property in favour of his three grand sons namely Kalimuddin, Naimuddin and Salimuddin by a Heba-bil-Ewaz deed No. 5018 dated 16.11.1918, a certified copy of the same has been produced. The said grand sons had obtained equal share of the land by the aforesaid deed. Among them Kalimuddin died leaving behind his only daughter Halimunnessa who having been in possession and enjoyment thereof transferred 0.68 ½ acres of land in favour of Ahid ullah and Sonaullah by a registered deed No. 9240 dated 2.10. 1967, a certified of said deed has been marked as exhibit-kha and their names along with others were correctly recorded in the S.A. khatian, the certified copy of the said khatian has been marked as exhibit-ga. Ahid ullah and Sonaullah having been in possession and enjoyment thereof transferred 0.34 acres of land in favour of Hafizuddin in the year, 1973. By inheritance and purchase Hafizuddin become the owner of the land and his name was recorded in the khatian. Thereafter Hafizuddin sold out 0.28 acres of land in favour of Md. Amzad Khan by a registered deed No.1083 dated 8.2.1977 which has been marked as exhibit-gha. Said Amzad Khan having been inducted into possession and enjoyment thereof transferred the said land to Ibnul Hasan, Rabeya Rashid and Rezia Rashid by three registered deed Nos.8581,8582 and 8583 dated 30.6.1980 which have been marked as exhibit- “Umma series.” Therefore, they mutated their Names in the record of right when they were in possession and enjoyment thereof through Mutation Case No4192/87-88 and they also paid rent to the government, copies of the said khatian, D.C.R. and rent receipts have been marked as exhibit-cha-series. Ibnul Hasan died leaving behind his wife, one son Moinul Hasan and 5 daughters. Rabeya, Rezia and the heirs of Ibnul Hasan transferred the said 0.28 acres of land in favour of defendant Nos.1-3 by a registered deed No.2374/07-08 upon getting possession over the land. The copies of the mutation khatians, D.C.R have been marked as exhibit-Chha-series. This witness further testified to the effect that they have constructed boundary wall around the suit land and built a three structured rooms over the suit land and electric line had been connected while gas line was under process. This D.W.1 denied all allegations, brought by the plaintiff in the suit. This witness on recall further produced certified copies of the deed Nos.3705 and 3706 dated 21.4.2007 which has been marked as exhibit-Ja.
- From a careful reading of evidence of the aforesaid witness we find that the original owner of the suit land is admitted by both sides and at one stage during cross-examination this witness disclosed worthy evidence in support of plaintiff’s case, which is quoted below:
- Md. Ismail Hossain as D.W.2 deposed that he knows both plaintiff and the defendants as well as suit land. His brother is the owner of some land situates on western side of the suit land. Defendants claimed the ownership of the suit land comprising an area of 0.28 acres of and upon purchase a few days before wherein a semi pacca tin shed-house exists and there is a boundary wall on the northern side and three other sides are being encircled by fencing of barbed wire. This witness further admits during cross examination that the plaintiff has a house over the suit land which he owns and further admits that there was a sign board lying with the house with the name of Farid Athmed (plaintiff) was seen over the suit land He further restified that the house of the defendants is situated ¾ kilomitres away from the suit land. He does not know the C.S, S.A. and R.S. khatians of the suit land but he knows the suit land under R.S. dag which contains total area of 0.113 acres of land but he can not say the ratio of the land belongs to each person concerned.
- Md. Almas as D.W.3 testified that he knows plaintiff and defendants as well as suit land and his house situates on his own land beside the suit land. Anis and Farid have been possessing and enjoying the suit land and there is a wall on one side and three other sides are encircled by fencing around the suit land. During cross-examination this witness admits that the plaintiff resides near the suit land and he does not know how much land are involved in the suit.
- It is also found from the evidence as disclosed by the witnesses that the plaintiff became the owner of the suit land which successively devolved upon him from the admitted original owner named Gopal Mondal. It has also been observed by us from the evidence of witnesses that Momiruddin Munshi is the predecessor of the plaintiff whose name was correctly recorded in respect of suit land along with other land but the plea made by the respondents as defendants is that Momiruddin Munshi purchased only 0.53 acres of land, how an area of 0.113 acres of lands appertaining S.A. Khatian No.124 and R.S Khatian 102 had been recorded in his name, this plea is not sustainable as there are other co-sharers in the land, disclosed by D.W-3 and the same has been misread by the Joint District Judge in his Judgment and decree dated 16.6.2009.
- The finding of the Trial Court has drawn our attention to some extent as quoted below:-“
- It is apparent from the said finding, made by the trial Court that the the defendant respondents without challenging the record of right of Momiruddin Munshi, the predecessor of the plaintiff, could not Mutate their name in accordance with law. This assertion of the trial Court goes in favour of the plaintiff-appellant at this stage whereas he dismissed the suit without stating reason therein and thereby not sustainable by this Court. If so required they (defendants) ought to have corrected the record of right. In the light of this proposition of law, it was held in the case of Abdul Hafez and another Vs. Lal Meah & others reported in 38 D.L.R. (1986) 327 and Akrab Ali and others Vs. Zahiruddin Kari and others reported in 30 D.L.R. (SC) (1978) 81 that according to section 103 B(5) of the Bengal Tenancy Act every entry in the record of right finally published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect. It is further revealed from the impugned Judgment that the learned Joint District Judge after perusal of evidence on record could not be able to take a proper decision as to whether the suit brought by the plaintiff was proved by adducing evidence on record or not. From a close scrutiny of deposition of witnesses and other relevant documents, marked as exhibits, we find that the appellant as plaintiff after purchasing the suit land from the original owners, took over possession of the same and constructed boundary wall and encircled by fencing of barbed wire and built a tin shed house over the suit land. On perusal of evidence on record we have noticed further that the said tin shed house was built 5/6 months before holding local inspection on 13.09.2007 which has supported the case of the plaintiff to the effect that the defendant respondents purchased the suit land as alleged on 5.07.2007 after constructing wall and tin shed-house over the suit land as alleged on 5.07.2007 after constructing wall and tin shed-house over the suit land by the plaintiff-appellant.
- We have further carefully gone through the impugned Judgment wherefrom we find that the trial Court made such remarks which reads as under:
- This finding of the Trial Court as well as evidence has made it clear that the record of ritht of Ahid Ali and sonaullah was defective which also goes against them (defendants) while in favour of the plaintiff appellant.
- In view of the discussion made above and submissions placed by the learned Advocate for the appellant to the effect that the plaintiff has been able to establish his right title as well as possession over the suit land both by adducing oral and documentary evidence and the other submissions made by the learned advocate for the respondents could not over come the case of plaintiff therefore, not accepted. And after having gone through the evidence and other materials on record we find that the decision of the trial Court calls for interference by this Court, be that as it may in view of what has been stated above, we find substance in this appeal. Accordingly, this appeal is allowed without any order as to costs and the Judgment and decree dated 16.6.2003 is hereby set aside and the suit is decreed as prayed for.
- The connected Rule being Civil Rule No. 520 (F)/2009 stands disposed of accordingly.
- Sent down the lower Courts record along with a Copy of this Judgment to the Court below, at once.