Md. Burju Mia Vs. Md. Abdur Rahman, (Md. Moinul Islam Chowdhury, J.)

Case No: Civil Revision No. 591 of 2014

Judge: Md. Moinul Islam Chowdhury, J

Court: High Court Division,

Advocate: Mr. Md. Mizanur Rahman, Advocate, Mr. Humayun Kabir Sikder, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Md. Burju Mia being dead his legal heirs 1(a) Moktar Hossain and others.

Respondent: Md. Abdur Rahman being dead his legal heirs 1(a) Nur Mohammad and others.

Subject: Specific Relief Act

Delivery Date: 2019-11-26

 HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Moinul Islam Chowdhury, J

 

Judgment on

05.12.2017

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Md. Burju Mia being dead his legal heirs 1(a) Moktar Hossain and others. 

. . . Defendant-Respondent-Petitioners

=Versus=

Md. Abdur Rahman being dead his legal heirs 1(a) Nur Mohammad and others.

. . . Plaintiff-Appellant-Opposite Parties

Specific Relief Act (I of 1877)

Section 9

Following the decision of the Salish cannot be said to be a due process of law—In the instant case, the present-petitioner accepted in their written statement that the plaintiffs were removed from their place of land after the decision of a Salish. Under Section 9 of the Specific Relief Act Salish cannot be a due process of law for dispossessing any person. In such case, the petitioners should have followed of due process of law before dispossessing the plaintiffs from the suit land. Accordingly, I am of the opinion that the plaintiffs could prove their possession upon the suit land for entitlement of which they have produced sufficient evidence, as such, the plaintiffs were entitled to get relief by filing the present suit. . . . (16)

Code of Civil Procedure (V of 1908)

order XLI Rule 31

The learned trial court committed an error of law by dismissing the suit on misreading and non consideration of the relevant documents and depositions, however, the learned appellate court has properly considered the evidence adduced and produced by the respective parties and came to a lawful conclusion by setting aside the judgment and decree of the learned trial court. I am, therefore, not inclined to interfere into the impugned judgment and decree passed by the learned appellate court. . . .(19)

Mr. Md. Mizanur Rahman, Advocate 

. . . For the Petitioners

Mr. Humayun Kabir Sikder, Advocate

. . . For the Plaintiff-Appellant- Opposite Parties

JUDGMENT

Md. Moinul Islam Chowdhury, J: At the instance of the present-Defendant-Respondent-Petitioners, Md. Burju Mia being dead his legal heirs 1(a) Moktar Hossain and others, HC j®­jÑ 1 ew Aflf­®rl fË¢a L¡lZ cnÑ¡­®e¡ f§hÑL l²m S¡l£ Ll¡ qCm, ®Le el¢pwc£l ¢h‘ A¢a¢lJ² ®Sm¡ SS Bc¡ma Hl ®cJu¡e£ 42/2007 ew Bf£­m fËQ¡¢la 27/03/2013 ¢MÊx a¡¢l­®Ml a¢LÑa l¡u Hhw 02/04/2013 ¢MËx a¡¢l­®Ml ü¡r¢la ¢X¢H² lc J l¢qa Ll¡ qC®­h e¡, ®k l¡u J ¢X¢H²j¤­®m el¢pwc£ l¡uf¤l¡l ¢hS· pqL¡l£ SS Bc¡ma Hhw ®cJu¡e£ 02/2002 ew ®j¡L¡Ÿj¡u fËQ¡¢la 15/01/2007 ¢MËx a¡¢l­®Ml l¡u Hhw 22/01/2007 ¢MËx a¡¢l­®Ml ü¡r¢la ¢X¢H² f¢lhaÑe f§hÑL Bf£m¢V jeS¤l qCu¡®Rz 

2.             The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party No.1, Md. Abdur Rahman being dead his legal heirs 1(a) Nur Mohammad and others as the plaintiffs filed the Title Suit No.02 of 2002 for recovery of khas possession along with the title upon the suit land as described in the schedule of the plaint upon the land measuring total 32 decimals and subsequently thereafter, amended 17.50 acres of land  situated in Safmara Mouja, Police Station- Raipura, District- Narsingdi. The plaint case is that the plaintiffs got the said measurement of land through an amicable settlement which was recorded in C.S. Khatian in the name of one Babar Ali, who transferred the land to his wife Chandbar Bibi who thereafter transferred the suit land to her adopted son Abdur Rahman (plaintiff No.1) by the Heba deed No.13430 dated 20.12.1972 and handed over possession thereon. The heirs of Babar Ali through Pandob Ali namely, Samina Khatun transferred the land to Surjaban Bibi (plaintiff No.2) by a sale deed dated 27.01.1988 for the land measuring 5.25 acres. The plaintiffs have been possessing the suit land through the above mentioned transaction on 01.08.2001 the present-defendant-petitioner dispossessed them from their suit land and built a tin shed house on the land, thus, the suit was filed.

3.             The present-petitioner (now dead) as the defendant contested the suit by filing a written statement denying the statement made in the plaint by contending, inter-alia that Khoraj Prodan was the original owner of the suit land, who died leaving behind four sons and two daughters, who succeeded the land in the course of inheritance and the present-petitioner became the owner of the suit land but the plaintiff did not have any entitlement but they had only possession upon the suit land therefore, on 10.12.1994 a salish was held thus, the plaintiff shifted the house 50 yard far from the suit land therefore, there is no question of dispossessing from the suit land.

4.             After hearing both the parties the learned trial court dismissed the suit by his judgment and decree dated 15.01.2007. Being aggrieved the present-opposite party as the appellant preferred the Title Appeal No.42 of 2007 in the court of the learned District Judge, Narsingdi which was heard by the learned Additional District Judge, Narsingdi on transfer who by his judgment and decree dated 27.03.2013 allowed the appeal thereby reversing the judgment and decree passed by the learned trial court. This revisional application has been filed challenging the said judgment and decree passed by the learned appellate court under Section 115(1) of the Code of Civil Procedure and this Rule has been issued thereupon.

5.             Mr. Md. Mizanur Rahman, the learned Advocate appearing for the petitioners submits that the learned trial court came to a conclusion after properly examining the document adduced and produced by the parties to dismiss the suit filed by the present-plaintiff-opposite party but the learned appellate court  without controverting the reasoning by the learned appellate court came to a wrongful conclusion to allow the appeal without reversing the judgment of the trial court therefore, it is not a judgment of reversal under the provision of law, as such, the Rule should be made absolute. 

6.             He further submits that the learned Judge of the court of appeal below misread the evidence on record and on misreading and non-reading and on misconstruction of law and fact arrived at a wrong decision which is liable to be interfered with by this Court for securing ends of justice, as such, the Rule should be made absolute. 

7.             He also submits, that when even the plaintiff is a co-sharer of same  jote and remains out of possession only claiming recovery of khas possession would not be appropriate step without claiming a partition of the suit land, as such, the present-opposite party claimed title and recovery of khas possession are not sustainable under the provision of law.

8.             The Rule has been opposed by the present-opposite party No.1, Abdur Rahman being dead his legal heir Nur Mohammad and others.

9.             Mr. Humayun Kabir Sikder, the learned Advocate for the opposite parties submits that  the present-plaintiff-opposite parties filed the title suit for recovery of khas possession and title upon the suit land mentioned above but the learned trial court without considering the documentary evidence being  Exhibit Nos.1-6 including the entitlement of the plaintiff as well the oral evidence by way of deposition of the PWs and DWs misread and failed to consider the evidential value of the evidence, therefore, came to a wrongful conclusion to dismiss the suit, however, the learned appellate court after examining the documentary and oral evidence reversed the judgment of the trial court within  the framework of law but the present-petitioners obtained the present Rule by misleading this Court, therefore, no interference is called for from this Court.

10.         The learned Advocate further submits that the plaintiff could successfully proved that they became the owner of the suit land by the deed of Heba deed dated 20.12.1972  and the plaintiff No.2 Surjaban Bibi got the land by way of sale deed dated 27.08.1988 and these documents have been exhibited, moreover,  the plaintiff could also prove that they were in possession but the present-petitioner dispossessed them from the suit land without any due process of law  which prompted them to file a suit for recovery of khas possession under the provision of law, therefore, the learned appellate court committed no error of law.

11.         Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(1) of the Code of Civil Procedure along with Annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court and also considering the materials in the lower courts’ records,  it appears to me that the present-plaintiff-opposite party filed the suit mainly for recovery of khas possession and along with the title upon the suit land described in the schedule of the plaint.

12.         On the other hand, the present-defendant-petitioner claimed that the plaintiffs failed to prove their case in respect of chain of title upon the suit land and also any exhibit for dispossessing them from the suit land by the present-defendant-petitioner.

13.         From the above given conflicting factual aspects this Court has to take  a decision whether the present-plaintiff-opposite parties could prove their case that they were dispossessed from the suit land by any due process of law and whether the plaintiffs could prove their entitlement and possession upon the suit land. The plaint does not contain the remedy sought for under which provision of law but the trial court simply stated that “Cq¡ paÉ p¡hÉÖqH²®­j M¡p cM®­ml ®j¡L¡Ÿj¡”. Accordingly, the learned trial court mainly focused upon the title of the parties and thereby came to a conclusion that the plaintiffs failed to prove their title upon the suit land, moreover, the learned trial court found no evidence of dispossession of the present-plaintiffs.

14.         In this regard, I have examined the documentary evidence which have been exhibited as Exhibit-1 which is a document dated 23.02.1939 for purchase of the suit land from Mamina Khatoon, daughter of Pandob Ali thereafter who sold the suit land measuring 5.25 acres to the plaintiff No.2 Surjaban Nessa by deed dated 27.08.1988 which is as Exhibit-3. I have also examined the deed dated 20.132.1972 in favour of the plaintiff No.1 Abdur Rahman from the wife of Babor Ali, Chandraban Bibi as Exhibit-2. Moreover, the plaintiff produced document regarding Mutation Case No.185/84-85 but the learned trial court ignored all these documents in order to show that the plaintiffs failed to prove any title upon the suit land and the learned trial court also ignored the admission made by the present-petitioner in the written statement that through a salish the plaintiffs were removed from their possession. However, the learned appellate court examined the above matters and considered the relevant document filed by the plaintiffs to prove their case, in particular, the learned appellate court after examining the PWs and DWs as well as the written statement came to a lawful conclusion that the plaintiffs were dispossessed from the suit land on 01.08.2001.

15.         I have carefully examined these documents and as well as the documents produced by the present-defendant-petitioner, being exhibits-‘Ka’, ‘Kha’, ‘Kha’ and ‘Gha’ respectively which are documents dated 15.12.1961 and some record of rights and a D.C.R but in my view the suit was filed after dispossessing the plaintiffs from the suit land.

16.         Regarding dispossession Section 9 of the Specific Relief Act provides that if a person is dispossessed from any immoveable property otherwise than in due course of law he or she can file a suit for recovery of possession. In this regard, any title is not an important factor or a party does not require proving title but only the plaintiff has to prove that whether he was in possession and he or she was dispossessed without any due process of law. In the instant case, the present-petitioner accepted in their written statement that the plaintiffs were removed from their place of land after the decision of a salish. Under Section 9 of the Specific Relief Act salish cannot be a due process of law for dispossessing any person. In such case, the petitioners should have followed of due process of law before dispossessing the plaintiffs from the suit land. Accordingly, I am of the opinion that the plaintiffs could prove their possession upon the suit land for entitlement of which they have produced sufficient evidence, as such, the plaintiffs were entitle to get relief by filing the present suit.

17.         I am now inclined to examine the judgment and decree passed by the learned courts below. The learned trial court came to a conclusion to dismiss the suit filed by the present-plaintiffs on the basis of the following wrong finding:-

e¡¢mn¡ i¨¢j pwm­OÀ ¢f, X¢hÓE-2  Hl ®L¡e S¢j Sj¡ e¡ b¡L¡ ü­®aÄJ ®hcM­®ml pju e¡¢mn¡ i¨¢j­®a a¡l Ef¢Öq¢al ¢hou¢V p¢WL NËqZ­®k¡NÉ hÉ¡MÉ¡ fËc¡e à¡l¡ fËj¡e Ll­®a hÉ¡bÑ q­®u­®Rez Ef­®l Nª¢qa ¢h¢iæ p¡r£l Sh¡eh¢¾c ®Sl¡ Hhw c¡¢Mm¡ L¡NSfH (fËcnÑe£ pq) fkÑ¡­®m¡Qe¡u ¢pà¡¿¹ qu ®k, 1 ew ¢hh¡c£ h¡c£­®L BlS£ h¢ZÑa j­a e¡¢mn¡ i§¢j q­®a ®hcMm L­®l e¡C Hhw ®hcM­®ml f§­®hÑ  h¡c£ e¡¢mn¡ i¨¢j cMm Lla e¡z        

18.         On the other hand, the learned appellate court came to his lawful conclusion to allow the appeal in favour of the present-plaintiff-opposite parties against the present-petitioners on the basis of the following finding:-

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19.         In view of the above discussions and perusing the impugned judgment and decree passed by the learned courts below  in particular, the learned appellate court, I am satisfied that the learned trial court committed an error of law by dismissing the suit on misreading and non consideration of the relevant documents and depositions, however, the learned appellate court has properly considered the evidence adduced and produced by the respective parties and came to a lawful conclusion by setting aside the judgment and decree of the learned trial court. I am, therefore, not inclined to interfere into the impugned judgment and decree passed by the learned appellate court.

20.         Accordingly, I do not find merit in the Rule.

21.         In the result, the Rule is discharged.

22.         The ad-interim order of stay granted at the time of issuance of the Rule upon the operation of the impugned judgment and decree in the Title Appeal No.42 of 2007 is hereby recalled and vacated.

23.         The office is directed to communicate this judgment and order to the concerned court immediately and the office is also directed to send down the lower courts’ records at once.

Ed.



Civil Revision No. 591 of 2014